author: LYONS, Justice.

text:
    Cecil E. CAMERON v. Laythron TILLIS and Ethel Tillis.
    1040493.
    Supreme Court of Alabama.
    Aug. 18, 2006.
    Randall Morgan and David W. Henderson of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant.
    Thomas B. Albritton of Albrittons, Clifton, Alverson, Moody & Bowden, P.C., Andalusia, for appellees.
   LYONS, Justice.

I. Facts and Procedural History

Laythron Tillis and his wife, Ethel Tillis, allege that, on or about April 14, 2002, Cecil E. Cameron, while driving a rental car he had leased from Hertz Corporation, rear-ended the vehicle occupied by Lay-thron, injuring him. As a result, the Tillis-es sued Cameron in the Coffee Circuit Court; Laythron alleged negligence and wantonness, and Ethel alleged loss of consortium.

The Tillises twice attempted to serve Cameron with the summons and complaint via certified mail at Cameron’s last-known address in Ft. Walton Beach, Florida. Both attempts failed, and each return-receipt came back unclaimed. Subsequently, the Tillises filed a motion with the trial court for service by publication, which the trial court granted. The trial court ordered that notice of the complaint be published once a week for four successive weeks in a newspaper published in Coffee County. Apparently, Hertz became aware of the litigation and, pursuant to its rental agreement with Cameron, retained an attorney to represent Cameron. Hertz denies having had any contact with Cameron since entering into the rental agreement, and the attorney Hertz retained to represent Cameron denies ever having any contact with Cameron. Both Hertz and the attorney it retained to represent Cameron deny knowledge of Cameron’s current whereabouts.

The attorney Hertz retained to represent Cameron states that he discovered through “alacourt.com,” an Internet database of court records, that service had been made by publication, and he thereafter made a limited appearance in the trial court for the purpose of challenging such service. The attorney filed a “motion in opposition to plaintiffs motion for service by publication and motion to quash service.” In effect, the motion falls under Rule 12(b)(4), Ala. R. Civ. P., attacking the sufficiency of process by arguing that Cameron was not subject to service by publication under the terms of the version of Rule 4.3(c), Ala. R. Civ. P., in effect at the time service by publication was made and that, the attorney says, applies to this proceeding.

The Tillises opposed the motion and moved for an entry of default. At a hearing in the trial court, the attorney retained to represent Cameron refused to accept service of process on Cameron’s behalf. After the hearing, the trial court entered a written order denying the attorney’s motion to quash service and granting the Tillises’ motion for the entry of a default judgment. Subsequently, the trial court entered a judgment by default against Cameron and assessed damages of $120,000 for Laythron and $20,000 for Ethel. Fourteen days later, the attorney retained to represent Cameron filed a motion requesting the trial court to set aside the default judgment under Rule 55(c), Ala. R. Civ. P.; to grant relief from the judgment under Rule 60(b), Ala. R. Civ. P.; or to alter, amend, or vacate the judgment under Rule 59(e), Ala. R. Civ. P. The attorney for Cameron argued in his motion that a nonresident defendant cannot be served by publication; that, in any event, before service may be made by publication, there must be evidence indicating that the defendant has avoided service; that default judgments are disfavored in the law; that the default judgment unduly prejudiced Cameron; and that the damages awarded were unsupported and excessive. The trial court denied the motion, and Cameron appealed.

II. Standard of Review

“The standard of review in the case of an order setting aside, or refusing to set aside, a default judgment proceeds on the basis that the trial judge has great discretion, and his judgment will not be disturbed unless he has clearly [exceeded] such discretion.” Roberts v. Wettlin, 431 So.2d 524, 526 (Ala.1983). However, “[w]hen the grant or denial [of a request for relief from a judgment] turns on the validity of the judgment, discretion has no place for operation. If the judgment is void, it is to be set aside; if it is valid, it must stand.” Smith v. Clark, 468 So.2d 138, 141 (Ala.1985).

III. Analysis

The attorney for Cameron argues that the trial court erred in refusing to set aside the default judgment or otherwise to grant Cameron relief from that judgment because, according to Cameron’s attorney, the judgment was void in that the trial court lacked personal jurisdiction over Cameron. See, generally, Clark, 468 So.2d at 141 (“A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.”). According to Cameron’s attorney, the trial court lacked personal jurisdiction over Cameron because he had not been properly served with the summons and complaint. See, generally, Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655, 657 (Ala.2001) (“It is settled law that failure to effect proper service under Rule 4, Ala. R. Civ. P., deprives the court of jurisdiction and renders a default judgment void.”).

Cameron’s attorney argues that Cameron was not properly served because the law provides that only Alabama residents may be served by publication. In Wise v. Siegel, 527 So.2d 1281,1282 (Ala.1988), this Court stated:

“In Braley v. Horton, 432 So.2d 463 (Ala.1983), the court held that the question of whether the defendant was a resident or a non-resident of the state was determinative of whether service of process by publication was ever permissible. There the Court held that Rule 4.3(c)[, Ala. R. Civ. P.,] applied only to resident defendants or a corporation with one of its principal places of business within the state. That rule contains the following provision:
“ ‘(c) Avoidance of Service. When a resident defendant avoids service and his present location or residence is unknown and the process server has endorsed the fact of failure of service and the reason therefor on the process and returned same to the clerk or where the return receipt shows a failure of service, the court may, on motion, order service to be made by publication .... ’ (Emphasis added.)
“Rule 4.3(a)(2) provides that ‘In no event shall an in personam judgment be entered on service by publication except as provided in subparagraph (c) of this rule.’ ”

Cameron’s attorney argues that, because the Tillises did not show that Cameron was a resident of Alabama and because the trial court made no finding that Cameron was a resident of Alabama, the above-quoted authority requires reversal of the trial court’s order refusing to grant Cameron relief from the default judgment.

Wise was decided in 1998. An amendment to Rule 4.3, Ala. R. Civ. P., effective August 1, 2004, deleted the term “resident” from subsection (c) of Rule 4.3, which was quoted in Wise and Braley. The Committee Comments to Amendment to Rule 4.3 Effective August 1, 2004, state: “Under the Rule as amended, any defendant who is avoiding service is amenable to service by publication, even nonresident defendants.” In the instant case, the trial court’s order for service by publication was entered on July 12, 2004, before the amendment to Rule 4.3(c) took effect. Under Rule 4.3(d)(3), valid service by publication must be published for four consecutive weeks, and in the instant case, publication was made on July 22, July 29, August 5, and August 12. However, under our case-law, service by publication on a nonresident defendant was invalid on July 22 and July 29. Therefore, service in this case has not been validly published for four consecutive weeks. Because Cameron was not properly served, the default judgment is void.

TV. Conclusion

Because the default judgment is void, Cameron was due relief from that judgment, and the trial court erred in denying that relief. We pretermit discussion of the other questions presented by the brief filed by Cameron’s attorney dealing with the sufficiency of the evidence of avoidance of service under the circumstances as they existed at the time of publication, because consideration of that issue presupposes the availability of Rule 4.3(c), Ala. R. Civ. P., as amended effective August 1, 2004.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author:
NABERS, Chief Justice.
     LYONS, Justice

license: Public Domain

text:
    Wendy K. STOKES v. Ligaya Renee FERGUSON.
    1031956.
    Supreme Court of Alabama.
    Aug. 18, 2006.

      D. Keith Bennett of Henry C. Dailey, Jr., P.C., Birmingham, for appellant.
    A. Joe Peddy and Melanie F. Lyerly of Smith, Spires & Peddy, P.C., Birmingham, for appellee.
   NABERS, Chief Justice.

Wendy K. Stokes, the plaintiff in a personal-injury action against Ligaya Renee Ferguson and Allstate Insurance Company, appeals from a summary judgment in favor of Ferguson, arguing that the trial court erred in holding that her claim was barred by § 32-1-2, Ala.Code 1975, also known as the guest statute. We reverse and remand.

I.

On April 11, 2002, Stokes was a passenger in a car driven by Ferguson when the car was involved in one-car accident while traveling on East Meighan Boulevard in Etowah County. Stokes was injured in the accident, and, on May 15, 2003, she sued Ferguson alleging that the accident was the result of Ferguson’s negligence and/or wantonness. Stokes also named as a defendant Allstate Insurance Company, alleging that she was covered by a policy issued by Allstate that included uninsured- and underinsured-motorist coverage and that Ferguson was an uninsured or under-insured motorist.

On February 11, 2004, Ferguson moved for a summary judgment, arguing that no genuine issue of material fact existed because Stokes was a guest in Ferguson’s car at the time of the accident and her claims were accordingly covered by Alabama’s guest statute, § 32-1-2, Ala.Code 1975. Section 32-1-2 provides;

“The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.”

Ferguson further argued that Stokes had failed to present substantial evidence indicating that Ferguson’s actions at the time of the accident were sufficiently willful and wanton so as to remove her from the scope of § 32-1-2.

Stokes filed a motion in opposition to Ferguson’s summary-judgment motion, arguing that the facts of the case rendered § 32-1-2 inapplicable and that, even if § 32-1-2 were applicable, Ferguson’s actions leading to the accident were willful and wanton. On August 20, 2004, the trial court entered a summary judgment in Ferguson’s favor. Stokes appeals.

II.

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.
‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004). Accordingly, this Court must first determine whether Ferguson has made a prima facie showing that no genuine issue of material fact exists and that she is entitled to a judgment as a matter of law, i.e., that Stokes was a “guest” in Ferguson’s car within the meaning of § 32-1-2 when the accident occurred. We conclude that no such prima facie showing was made.

In their briefs to this Court, both parties note that the other’s motion to the trial court regarding summary judgment was wholly unsupported by any affidavits, interrogatories, depositions, or evidentiary material of any kind. Ferguson’s summary-judgment motion consisted only of a memorandum summary of the facts unsupported by any evidence in the record and a legal argument. Stokes’s motion opposing summary judgment similarly consisted of a statement of facts and accompanying legal argument unsupported by any evidentiary material.

In Borom v. Thaggard, 926 So.2d 331 (Ala.2005), this Court considered a similar appeal in which a summary judgment had been entered for a defendant in spite of the fact that the defendant’s summary-judgment motion had been filed “with no supporting documentation or affidavits of any kind.” 926 So.2d at 332. In reversing the summary judgment, this Court stated:

“The minimum requirements for a motion for a summary judgment were summarized in Northwest Florida Truss, Inc. v. Baldwin County Commission, 782 So.2d 274, 276-77 (Ala.2000):
“ ‘Rule 56(c)(1), Ala. R. Civ. P., requires that a motion for summary judgment “be supported by a narrative summary of what the movant contends to be the undisputed material facts.” Although it may be included in the motion or may be separately attached as an exhibit, the rule clearly requires that a narrative summary be included with any motion for summary judgment. The narrative summary must include specific references to pleadings, portions of discovery materials, or affidavits for the court to rely on in determining whether a genuine issue of material fact exists.
“ ‘A summary judgment is not proper if the movant has not complied with the requirements of Rule 56. Moore v. ClaimSouth, Inc., 628 So.2d 500 (Ala.1993); see also Thompson v. Rehabworks of Florida, Inc., 727 So.2d 807 (Ala.Civ.App.1997), Hale v. Union Foundry Co., 673 So.2d 762 (Ala.Civ. App.1995). While the Rule provides that a movant may base its motion upon the pleadings and other documents on file with the court, it does not allow a party to file a simplistic motion devoid of a narrative summary and specific references to those portions of the record demonstrating that no genuine issue of material fact exists.’ ” ■

Id. at 332 (emphasis omitted).

Ferguson’s motion for a summary judgment differed from the summary-judgment motion in Borom inasmuch as it did include a narrative summary of the facts; however, it similarly failed to comply with the mandate of Rule 56(c)(1) that the narrative summary “be supported by specific references to pleadings, portions of discovery materials, or affidavits .... ” For that reason, as in Borom, the summary judgment is due to be reversed.

III.

Because Ferguson’s motion for a summary judgment did not comply with Rule 56, the trial court erred in entering a summary judgment in her favor. Accordingly, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WOODALL, SMITH, and PARKER, JJ., concur.

LYONS, J., concurs specially.

LYONS, Justice

(concurring specially).

I concur, notwithstanding that Stokes failed to interpose any objection in the trial court to the absence of properly verified evidence to support Ferguson’s motion for a summary judgment. Our cases on this issue have not addressed the issue in the context of the necessity of an objection. See, e.g., Borom v. Thaggard, 926 So.2d 331 (Ala.2005). In that respect, our rule is similar to the rule expressed in Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 160 (Tex.App.1995), as follows:

“The resolution of this argument [whether a ruling on an objection in the trial court is necessary to assert error on appeal] depends on the type of defect at issue. A defect in substance, such as the absence of proper authentication, cannot be waived by failing to object or obtain a written order. Kotzur [v. Kelly], 791 S.W.2d [254] at 256 [ (TexApp.1990) ]. ‘This objection may be raised for the first time on appeal because an un-sworn statement is not an affidavit and, therefore, not competent summary judgment proof.’ Id.”

(Emphasis added.)

I would not apply the rule excusing the necessity for an objection beyond the facts of this case.

      . This case was originally assigned to another Justice on this Court; it was reassigned to Chief Justice Nabers on June 26, 2006.

      . The parties refer to the street name as East Meishan Boulevard and East Meirham Boulevard.

      . The trial court’s August 20 order stated only that it was granting Ferguson’s motion for a summary judgment; it did not contain a discussion of the facts and relevant law. However, in July 2005, this Court remanded the case to the trial court for a Rule 54(b), Ala. R. Civ. P., certification because Stokes’s claim against Allstate was still outstanding, and the summary judgment against Ferguson was accordingly nonfinal and unappealable. On remand, the trial court entered a new order explaining its rationale and certifying the judgment as final pursuant to Rule 54(b).

      . Stokes did cite her own deposition testimony, but that testimony was not attached to her motion and is nowhere to be found in the record. Stokes has attached her deposition and other evidence to her brief on appeal; however, because those pieces of evidence are not part of the official record we may not consider them now. See Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala. 1995) ("This Court is bound by the record, and it cannot consider a statement or evidence in a party's brief that was not before the trial court.”).


author: NABERS, Chief Justice.

text:
    BRADLEY OUTDOOR, INC. v. COLONIAL BANK.
    1041079.
    Supreme Court of Alabama.
    Aug. 18, 2006.

      James Marks, Sheffield, for appellant. Gary P. Wilkinson, Florence, for appel-lee.

      . This case was originally assigned to another Justice on this Court. It was reassigned to Chief Justice Nabers on June 26, 2006.

   NABERS, Chief Justice.

Colonial Bank brought this declaratory-judgment action to quiet title to a tract of land in Lauderdale County and to resolve the competing claim of Bradley Outdoor, Inc., to a part of that tract. The trial court entered a summary judgment for Colonial Bank. We affirm.

I. Facts and Procedural History

From 1950 to 1984, Ellen Johnson and her husband Beman Johnson were in uninterrupted possession of the tract of land that is the subject of the dispute (“the tract”). The tract includes a 175-foot-wide rectangular strip (“the strip”) that runs along the tract’s eastern boundary and is subject to a utility easement. In 1984, Beman executed a deed conveying his interest in the tract, except as to the strip, to Ellen. Ellen recorded the deed on January 30,1985.

Beman died on March 15, 1985. Ellen continued in possession of the tract — including the strip — until at least 1996, when she recorded in the Probate Court of Lauderdale County an “Affidavit in Aid of Title.” The affidavit stated that the “intention” of the language excepting the strip from the conveyance in the 1984 deed was solely to denote that the strip was subject to the utility easement. Ellen also stated that she had been in actual possession of the tract, including the strip, for more than 10 years (from 1985 to 1996); that she had paid taxes on the tract, including the strip, throughout that period; and that no other person had paid taxes or challenged her title to the tract.

On May 1, 2002, Colonial Bank was awarded a judgment against Ellen in the Lauderdale Circuit Court. The tract was sold at a judicial sale to satisfy the judgment, and Colonial Bank bought it at auction on May 21, 2004. On June 28, 2004, the Lauderdale County sheriff issued a sheriffs deed to the tract in favor of Colonial Bank. Sometime in 2004, Colonial Bank became aware that Bradley Outdoor claimed an interest in the strip.

In 2002, Ellen’s son, Paul N. Johnson, had filed for bankruptcy in the United States District Court for the Northern District of Alabama. In that bankruptcy proceeding, the bankruptcy court concluded that Paul owned the strip and ordered it sold to fund the bankruptcy estate. Bradley Outdoor was the high bidder and, on August 27, 2004, the bankruptcy trustee issued a deed purporting to convey the strip to Bradley Outdoor.

Once it became aware that Bradley Outdoor was claiming an ownership interest in the strip, Colonial Bank filed a declaratory-judgment action in the Lauderdale Circuit Court, asking the court to declare it the owner of the tract, including the strip. On October 25, 2004, Colonial Bank moved for a summary judgment. The circuit court granted the motion on January 4, 2005, stating:

“Colonial Bank’s claim of ownership of the real estate which is the subject of the complaint in this case ... is derived from a chain of title prior to and passing to [Beman] Johnson and Ellen Johnson by a deed from L.P. Odem and wife C.V. Odem dated May 22, 1950 recorded in Book 428 at pages 594-598 in the Records of the Probate Judge of Lauderdale County, Alabama (which is here[in]after called Probate Judge’s Records), and then passing to Ellen Johnson by a deed from [Beman] L. Johnson dated December 4, 1984 recorded in Volume 1244 at Pages 50-55 in the Probate Judge’s Records. Ellen Johnson’s title to THE PROPERTY was further established by the facts contained in her Affidavit In Aid of Title acknowledged on February 16, 1996 which is recorded in Fiche 96-66 at Frames 17 and 18 in the Probate Judge’s Records. Ellen Johnson’s interest in THE PROPERTY was acquired by Colonial Bank by virtue of an execution sale by the Lauderdale County, Alabama, Sheriff on June 28, 2004 as evidenced by the Sheriffs Deed dated June 28, 2004 and recorded in RLPY 2004 39405 39406 in the Probate Judge’s Records.
“The claim of interest in THE PROPERTY by Bradley Outdoor, Inc. is asserted in this case as through the ownership, if any, of Paul N. Johnson which Bradley Outdoor, Inc. supposedly acquired by a deed from Tazewell Shepard, Trustee in Bankruptcy of the Estate of Paul N. Johnson and Jawanda Johnson. This deed was issued pursuant to an order by the Bankruptcy Court dated May 28, 2004 which said deed has not been recorded. The Quit Claim deed from Freada Nichols, Leon Nichols, [Xenophon] Nichols and Cleo Woods dated August 26, 1999 to Paul N. Johnson recorded in Fiche 0099-521 01 in the Probate Judge’s Records created no interest in Paul N. Johnson which could have been conveyed by him or the Trustee in bankruptcy....
“It is therefore more specifically ORDERED, ADJUDGED, and DECREED that Colonial Bank is declared the owner of the real estate ... subject to the rights of Tennessee Valley Authority for a utility easement.”

(Capitalization in original.)

II. Analysis

A party is entitled to a summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The Court reviews a summary judgment de novo, subject to the caveat that it must review the evidence and all reasonable inferences from the evidence in the light most favorable to the nonmoving party. University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1246 (Ala.2004); and Southeast Cancer Network, P.C. v. DCH Healthcare Auth., Inc., 869 So.2d 452, 456 (Ala.2003).

On appeal, Bradley Outdoor does not contest the validity of the execution on the judgment in favor of Colonial Bank or of the sheriffs sale of the tract. Instead, it argues that there are disputed issues of fact as to whether Ellen had title to the strip, and, therefore, whether the sheriffs deed could have conveyed title to the strip to Colonial Bank. Bradley Outdoor also argues that there are disputed issues of material fact as to whether Paul established title to the strip by virtue of the August 26,1999, quitclaim deed referenced in the trial court’s order. We do not agree that there are genuine issues of material fact as to the ownership of the strip.

Colonial Bank presented evidence of an unbroken chain of title to the tract, beginning with a G.P. Nicolopoolos and Freada Nicolopoolos and dating back to 1927. This chain of title leads directly to Beman and Ellen’s purchase of the tract in 1950 and to Beman’s conveyance of the tract, minus the strip, to Ellen in 1984. This evidence establishes that as of 1984 Ellen and Beman owned the strip, and Ellen alone had title to the rest of the tract.

The affidavit Ellen recorded in the Probate Court of Lauderdale County in 1996 states:

“2. I have been in actual peaceable possession of the [tract], either individually or through Beman L. Johnson, my husband, continuously since 1950;
“3. The [tract] has been assessed in my or my husband’s name since 1950, and I have paid the ad valorem taxes on the [tract] for the whole of such period, with no other person paying such taxes during any portion of such time....
“5. Based upon the foregoing, I, or persons I am claiming through, have been in actual, peaceable possession of the [tract] for a period of more than ten (10) consecutive years and have paid taxes on the whole of it for such time, with no other person paying such taxes, and no person challenging my ownership of the [tract] during such time.”

These facts show that Ellen was in actual, exclusive, continuous, open, and hostile possession of the tract — including the strip — from Beman’s death in 1985 until the filing of her affidavit in 1996. The affidavit is also evidence indicating that Ellen “listed the land for taxation in the proper county for 10 years prior to the commencement of the action .... ” § 6-5-200(a)(2), Ala.Code 1975. This establishes the elements of adverse possession and shows that Ellen had title to the tract, including the strip, in 1996, by virtue of adverse possession. Brown v. Brown, 361 So.2d 1038 (Ala.l978)(deseribing the elements of adverse possession).

In an effort to show that there are disputed issues of fact, Bradley Outdoor offered a 1999 quitclaim deed that purported to convey the strip from Freada Nichols, Leon Nichols, Xenophon Nichols, and Cleo Woods to Paul Johnson. Bradley Outdoor argues that title “remained in the Nicolopoolos name” until 1999, when the quitclaim deed purportedly conveyed the strip to Paul. Although it appears that Bradley Outdoor believes that the “Freada Nichols” listed as a grantor in the 1999 quitclaim deed is the same person as Frea-da Nicolopoolos, it has presented no evidence to support this belief. In fact, the record is devoid of any evidence identifying the grantors in the 1999 quitclaim deed or describing the basis for their claim of title to the strip. The 1999 deed thus fails to create any genuine issue of material fact.

Bradley Outdoor also offered an affidavit by Paul and a second affidavit by Ellen. Paul’s affidavit referenced the 1999 quitclaim deed and stated: “I was the owner of the property in dispute.... I paid taxes on this tract as part of a tract to the East which was owned by a trust for my mother.” This affidavit also fails to create a genuine issue of material fact. The statement that Paul “was the owner of the property is a legal conclusion, not a statement of fact. In addition, Paul does not state when he paid taxes on the strip. As a result, Paul’s affidavit fails to contradict any of the fads of Ellen’s 1996 affidavit, including the statement that she had paid taxes on the strip from 1985 to 1996.

Bradley Outdoor also offered as evidence a second affidavit by Ellen. This second affidavit began by referencing Ellen’s 1996 affidavit and then stated:

“[The 1996 affidavit] was given in conjunction with the purchase of certain land in Lauderdale County when the land was bought to build the ‘Logan’s Road House Restaurant’ on Highway 72 East.
“Although I signed this affidavit, I did not prepare it, nor did I assist in its preparation. In fact, it is my understanding that it was prepared by a firm in Nashville, Tennessee, and I did not communicate with anyone in its preparation.
“I signed this affidavit entirely to facilitate the sale of the ‘Logan’s Roadhouse’ property and not in contemplation that it would affect the property that is the subject of the lawsuit now pending in Case Number CV-2004-371 in the Circuit Court of Lauderdale County, Alabama.
“In fact, the property in dispute in said case is not, and was not owned by me. It was owned by a Trust which my son Paul Johnson administered. The property in dispute in said Civil Action was leased by my son, Paul N. Johnson to Phoenix Structures & Service, Inc. d/b/a Trinity Outdoor Advertising for use as a-location for a billboard sign for a few years.”

Bradley Outdoor argues that this second affidavit, in which Ellen disclaimed ownership of the strip, created a genuine issue of material fact as to whether she had title to the strip and was thus able to convey that title to Colonial Bank.

The apparent contradiction between the 1996 affidavit and the second affidavit is certainly curious. However, the second affidavit fails to state any facts that contradict those of the 1996 affidavit. Ellen’s motive for executing and recording the 1996 affidavit is irrelevant, as is whether she contemplated that that affidavit would affect any subsequent actions involving the tract. Similarly, although Ellen’s statement that the “property in dispute ... is not, and was not owned by me” might seem to create a genuine issue of fact as to whether she had title to the strip, it does not. The question of who had title is one of law, not of fact. Although Ellen may now believe that she never had title to the strip, her belief is irrelevant. Nothing in Ellen’s second affidavit contradicts the facts of her 1996 affidavit, and those facts established that she held title to the strip, which she had acquired by adverse possession.

III. Conclusion

The evidence shows that Ellen had title to the tract, including the strip, as of 1996. The sheriffs sale conveyed the tract, including the strip, to Colonial Bank, and Colonial Bank was entitled as a matter of law to a judgment declaring that it has title to the tract, including the strip. The judgment of the trial court is therefore affirmed.

AFFIRMED.

SEE, HARWOOD, STUART, and BOLIN, JJ., concur.

      . The Johnsons acquired the tract by a warranty deed dated May 22, 1950. The deed excepted the strip from the warranties but concluded by quitclaiming the strip to the Johnsons. The deed was recorded on May 23, 1950.

      . The record shows that such a trust exists and that it owned property to the east of the tract. However, the property owned by the trust is distinct from the tract.

      . We note that Beman’s will devised all real property owned by him at the time of his death to Ellen. Because of our resolution of this appeal on the adverse-possession issue, we need not determine the effect of that devise.


text:
    Robert David BOLES, M.D., and Southeastern Surgical Specialists, Inc. v. Randall PARRIS, as administrator of the estate of Burl Herman Parris, deceased.
    1030744.
    Supreme Court of Alabama.
    Aug. 18, 2006.

      Randal H. Sellers and Joseph L. Reese, Jr., of Starnes & Atchison, LLP, Birmingham, for appellants.
    S. Greg Burge of Heninger, Burge, Var-go & Davis, Birmingham, for appellee.
   On Application for Rehearing

NABERS, Chief Justice.

The opinion of June 16, 2006, is withdrawn, and the following is substituted therefor.

Robert David Boles, M.D., and Southeastern Surgical Specialists, Inc., the defendants in this wrongful-death action, appealed, challenging the jury’s award of punitive damages against them. We affirm.

On August 17, 1998, Dr. Boles removed a cancerous part of Burl Herman Parris’s lung at Northeast Alabama Regional Medical Center (“RMC”) in Anniston. The surgery itself went well, and Burl remained at RMC while he recuperated. Dr. Boles continued to treat Burl while Burl was a patient at RMC.

At 4:30 a.m. on September 7, 1998, a nurse telephoned Dr. Boles at his home. She informed him that Burl had “coded,” that his respiration and pulse were weak, and that he was non-responsive. Dr. Boles then spoke to an on-duty physician at RMC who told him that Burl was anemic and was suffering from gastrointestinal bleeding. Dr. Boles did not go to the hospital after these conversations. At trial, Dr. Boles testified that this type of bleeding was a potentially fatal surgical problem.

The nurse telephoned Dr. Boles again at 6:30 a.m. to tell him that Burl’s respiration, pulse, and blood pressure were at dangerous levels. Dr. Boles did not go to the hospital, nor did he order that Burl be admitted to the intensive-care unit at RMC.

At 8:15 a.m., Dr. Boles received a third telephone call, informing him that other doctors were working to save Burl’s life. Dr. Boles testified that after the third call he went to the hospital, where he “look[ed] at the code.” However, no one remembered having seen him at the hospital, and no hospital record reflects that he was present at that time. Burl died later that morning.

Randall Parris, the administrator of Burl’s estate, sued Dr. Boles; Southeastern Surgical Specialists, Inc., described in the appellants’ brief as “Dr. Boles’[s] professional association”; and RMC, alleging ■wrongful death. The case went to trial in September 2003. At trial, Dr. Boles testified that if he had gone to the hospital when he received the second telephone call at 6:30 a.m., “I probably could have saved [Burl’s] life, quite possibly saved his life.” Randall Parris offered expert testimony indicating that Burl’s life could have been saved had something been done before approximately 7:30 a.m. Dr. Boles also testified that he lived five minutes from RMC, that he was unoccupied on the morning of Burl’s death, and that he deliberately chose not to return to the hospital after the telephone calls.

Before closing arguments, Dr. Boles and Southeastern Surgical Specialists moved the trial court to declare unconstitutional that portion of Alabama’s wrongful-death statute that prohibits the apportionment of damages among joint tortfeasors. They also filed a motion asking the trial court to use special verdict forms to allow the jury to apportion any damages it might award among the defendants. The trial court denied both motions.

The jury found for Randall Parris and awarded punitive damages of $1,375 million. The trial court denied Dr. Boles’s motion for a new trial or, in the alternative, for a remittitur. However, pursuant to § 11-93-2, Ala.Code 1975, it granted RMC’s motion to reduce RMC’s liability on the judgment to $100,000. This left Dr. Boles and Southeastern Surgical Specialists liable for the remaining $1,275 million.

Dr. Boles and Southeastern Surgical Specialists appealed. They do not contest liability; nor do they argue that the verdict was excessive or contrary to the evidence. Instead, they argue only that the jury should have been instructed to apportion damages among the three defendants according to their respective culpabilities.

Under the pertinent provisions of the Alabama Code, as amended in 1999, a defendant is liable “only for punitive damages commensurate with that defendant’s own conduct” — that is, joint tortfeasors are not jointly and severally liable for an award of punitive damages. § 6-ll-21(e), Ala.Code 1975. However, through an amendment in 1999, the Alabama Legislature specifically excepted wrongful-death actions from this rule. § 6 — 11—21(j), Ala. Code 1975. Moreover, even before the adoption of the current version of § 6-11-21, this Court did not permit juries to apportion damages in wrongful-death actions. Campbell v. Williams, 638 So.2d 804, 812 (Ala.1994). The long-standing law of this State has neither required nor allowed the apportionment of punitive damages in the context of a wrongful-death action. See Black Belt Wood Co. v. Sessions, 514 So.2d 1249 (Ala.l986)(describing the “longstanding rule” of nonapportionment in wrongful-death actions); see also Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612 (1952).

Dr. Boles and Southeastern Surgical Specialists acknowledge that the apportionment of punitive damages in wrongful-death actions is contrary to existing Alabama caselaw. They argue, however, that “neither stare decisis nor legislative deference should preclude this Court from abandoning its nonapportionment rule.” Instead, they argue, the Court should disregard the plain meaning of the statute because it “conflicts with the purpose of punitive damages” and is “disharmonious with public policy.”

However, it is well established that the legislature, and not this Court, has the exclusive domain to formulate public policy in Alabama. Leonard v. Terminix Int’l Co., 854 So.2d 529, 534 (Ala.2002). The legislature is presumed to be aware of existing law and judicial interpretation when it adopts a statute. Ex parte Haynes Doimard Andra & Jones, LLP, 924 So.2d 687, 699 (Ala.2005). By creating a specific exception in § 6 — 11—21(j) and preserving the judicially created rule, the legislature has spoken clearly in favor of nonapportionment in wrongful-death cases.

Dr. Boles and Southeastern Surgical Specialists also argue that nonappor-tionment of punitive damages violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. They have failed to cite any case that states this proposition, and we have found none. Instead, they rely on dissenting opinions and. largely unrelated “substantive due process” cases. They also point to other jurisdictions in which courts have decided that apportionment of punitive damages among joint tortfeasors is “preferable” to nonapportionment. However, those decisions do not support the conclusion that apportionment is constitutionally mandated; in fact, they lead to the opposite conclusion. If apportionment were constitutionally mandated, the question of “preference” would be moot. Moreover, as discussed above, the Alabama Legislature’s decision to enact a statute continuing nonapportionment of punitive damages in wrongful-death cases precludes any consideration of whether another rule might be “preferable.”

The argument that the punitive damages in this case should be apportioned among the defendants not only is unsupported by significant authority, but also is directly contrary to the existing authority in this area. In Campbell v. Williams, 638 So.2d 804, 811 (Ala.1994), this Court stated that “nonapportionment of punitive damages among multiple defendants in wrongful death cases bears a rational relationship to a legitimate state interest — the prevention of homicide — and it thus does not violate constitutional guarantees.” The argument advanced by Dr. Boles and Southeastern Surgical Specialists is also inconsistent with the United States Supreme Court’s Fourteenth Amendment jurisprudence. In Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 47 S.Ct. 509, 71 L.Ed. 952 (1927),, an earlier due-process challenge to an Alabama wrongful-death statute, the jury awarded punitive damages against an employer based on the negligence of an employee. The employer itself was not at fault. Nevertheless, the Court held that the award of punitive damages against the employer did not violate due process:

“We cannot say that it is beyond the power of a Legislature ... to attempt to preserve human life by making homicide expensive. It may impose an extraordinary liability such as the present, not only upon those at fault but upon those who, although not directly culpable, are able nevertheless, in the management of their affairs, to guard substantially against the evil to be prevented.”

274 U.S. at 116, 47 S.Ct. 509. Even if we were to assume that Dr. Boles’s and Southeastern Surgical Specialists’ share of the judgment against them is disproportionate to their fault — and this is by no means clear from the record' — the judgment does not violate due process under long-standing precedent.

The award of punitive damages against Dr. Boles and Southeastern Surgical Specialists is consistent with the Alabama Code, and it does not violate the United States Constitution. The judgment of the trial court is affirmed.

APPLICATION OVERRULED; OPINION OF JUNE 16, 2006, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

SEE, HARWOOD, STUART, and BOLIN, JJ., concur.

      . This case was originally assigned to another Justice on this Court; it was reassigned to Chief Justice Nabers on May 10, 2006.

      . On December 2, 2005, while this appeal was pending, counsel for Dr. Boles and Southeastern Surgical Specialists, Inc., filed in this Court a suggestion of death, stating that Dr. Boles had died on or about October 25, 2005. "When the death of a party has been suggested, the proceeding shall not abate, but shall continue or be disposed of as the appellate court may direct.” Rule 43(a), Ala. R.App. P. Because Southeastern Surgical Specialists remains a party, and because the judgment survives against the personal representative of Dr. Boles's estate, § 6-5-462, Ala. Code 1975, there remains a justiciable controversy.

      . "The recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for bodily injury or death for one person in any single occurrence.” § 11-93-2, Ala.Code 1975. "'Governmental entity' shall also mean county or city hospital boards when such boards are instrumentalities of the municipality or county or organized pursuant to authority from a municipality or county.” § 11-93-1, Ala.Code 1975. The parties agree that RMC is such an entity and that RMC’s liability was properly limited to $100,000 in accordance with § 11-93-2.

      . In the final paragraph, the appellants’ brief concludes that nonapportionment also violates the Due Process Clause of the Alabama Constitution. They cite no authority, however, to support this argument. " ' "When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.” ' ” University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1247-48 (Ala.2004)(quoting Ex parte Showers, 812 So.2d 277, 281 (Ala.2001), quoting in turn City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998)).

      . Dr. Boles and Southeastern Surgical Specialists do not argue that the amount of the punitive-damages award is so excessive that it violates the Due Process Clause. Cf. BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed:2d 809 (1996).

      . This is also consistent with the criminal-law principle that all parties to the same criminal offense are subject to the same range of punishment, regardless of their individual degree of culpability. An accomplice may therefore be punished as severely, or even more severely, than a more culpable offender. McGinnis v. State, 382 So.2d 605, 609 (Ala.Crim.App.1979); see § 13A-2-23, Ala.Code 1975.


author:
PER CURIAM. MURDOCK, Judge,
      THOMPSON, Judge,

text:
    Cynthia MEINHARDT v. SAAD’S HEALTHCARE SERVICES, INC. SAAD’S Healthcare Services, Inc. v. Cynthia Meinhardt.
    2040192.
    Court of Civil Appeals of Alabama.
    March 17, 2006.
    Certiorari Quashed Sept. 15, 2006 Alabama Supreme Court 1050888.

      John R. Spencer, Mobile, for appellant/cross-appellee Cynthia Meinhardt.
    Ian D. Rosenthal and Joseph D. Stutz of Cabaniss, Johnston, Gardner, Dumas & O’Neal, LLP, Mobile, for appellee/cross-appellant SAAD’s Healthcare Services, Inc.
   On Application for Rehearing

PER CURIAM.

The opinion of November 18, 2005, is withdrawn, and the following is substituted therefor.

Cynthia Meinhardt sued her employer, SAAD’S Healthcare Services, Inc. (“SAAD’S”), seeking workers’ compensation benefits under the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”), based on “severe physical and psychological” injuries she sustained after being stabbed repeatedly while working in the line and scope of her employment at SAAD’S. SAAD’S answered and admitted that Meinhardt had sustained injuries arising out of and in the course of her employment.

Following an ore tenus proceeding, the trial court entered a judgment on August 23, 2004, finding that Meinhardt had suffered a permanent and total disability. However, the trial court declined to award Meinhardt permanent and total disability benefits based on its finding that Mein-hardt had unreasonably refused to accept medical services, including both psychological and psychiatric care. In light of that finding, the trial court found that Mein-hardt had sustained a 90% physical impairment to her body as a whole and that, as a result of her physical and psychological injuries, Meinhardt had a 90% vocational disability. The trial court determined that Meinhardt had reached maximum medical improvement (“MMI”) with regard to her psychological injuries on May 1, 2004. A postjudgment motion filed by Meinhardt pursuant to Rule 59, Ala. R. Civ. P., was subsequently denied. Meinhardt appealed, and SAAD’S cross-appealed.

Meinhardt was employed by SAAD’S as a home-health-care nurse; she began working for SAAD’S in July 2001. On March 7, 2002, Meinhardt visited the home of an elderly patient. Meinhardt testified that, after leaving the home, the patient’s grandson called her cellular telephone and asked her to come back into the home. According to Meinhardt, she was attempting to talk on a telephone in the home when the grandson viciously attacked her. Meinhardt was stabbed over 47 times. Among the worst injuries she sustained from the assault were a cut to her jugular vein and the collapse of her right lung.

Meinhardt spent one week in the hospital. After being discharged from the hospital, Meinhardt underwent two months of physical therapy. In physical therapy, Mein-hardt worked on improving the use of her hands, right shoulder, and right arm. The parties stipulated before trial that Mein-hardt had reached MMI with regard to her right shoulder on June 25, 2002, and that Meinhardt had reached MMI with regard to the remainder of her physical injuries on September 13, 2002.

At trial, Meinhardt testified that she continued to have pain in her right arm and shoulder as well as pain in her right lung that she described as “cramps.” Me-inhardt explained that the pain from her injuries limited her activity. According to Meinhardt, she can cook and do light housework, but she must rely on her children to do the majority of the work around the house.

Meinhardt testified that she began to receive mental-health counseling approximately two months after the assault to address problems she had with nightmares and depression. Meinhardt first sought treatment on April 22, 2002, from Dr. Jake Epker, a psychologist. Meinhardt testified that she attended two or three counseling sessions with Dr. Epker before leaving his care because she “felt uncomfortable with him.” While under the care of Dr. Epker, Meinhardt was referred to a psychiatrist, Dr. Marilyn Hammond, who prescribed Meinhardt medication to treat her depression and post-traumatic stress disorder (“PTSD”). At Meinhardt’s request, Dr. Hammond referred her to Dr. Melissa Ogden, a psychologist practicing in the same office as Dr. Epker. Mein-hardt testified that she attended seven counseling sessions with Dr. Ogden. According to Meinhardt, she felt that her depression and overall mood had improved while she was in counseling. Meinhardt last saw Dr. Ogden for treatment in October 2002. Meinhardt testified that she stopped seeing Dr. Ogden because she felt better.

Meinhardt testified that in November 2002 Dr. Hammond released her to return to work and that she immediately returned to work in the office of SAAD’S. Mein-hardt testified that she cried while at work and that hearing a telephone ring at work upset her. Meinhardt worked intermittently over a two-week period before quit-, ting her job. Meinhardt has not worked since November 2002.

Meinhardt testified that in February 2004 she sought treatment from Dr. William Wilkerson; at that time, Meinhardt had not taken medication or received mental-health counseling for approximately one year. Meinhardt testified that she returned for treatment after experiencing problems with persistent crying, restless nights, and major depression. According to Meinhardt, her condition when she saw Dr. Wilkerson was no worse than when she initially sought treatment in 2002. Meinhardt testified that Dr. Wilkerson prescribed Remeron, an antidepressant, and that the medication has helped “some.” Meinhardt testified that she still suffers from depression. According to Meinhardt, in 2004 she had not sought medical treatment for any of her physical problems but had only sought treatment for her mental condition.

Dr. Hammond testified by deposition that she initially diagnosed Meinhardt with acute PTSD and major depression in June 2002. Dr. Hammond testified that she discussed with Meinhardt her diagnosis and explained the benefits of taking medication and participating in counseling. According to Dr. Hammond, she made it clear to Meinhardt that individual psychotherapy was necessary for the treatment of PTSD and in order for Meinhardt to make any improvement. Dr. Hammond prescribed Serzone, an antidepressant, to Meinhardt. Dr. Hammond testified that Meinhardt’s initial prognosis was good given Meinhardt’s compliance with treatment.

Dr. Hammond testified that Meinhardt’s mental condition improved over the course of her treatment. During a September 23, 2002, session with Dr. Hammond, Mein-hardt rated her mood as an 8 on a scale of 1 to 10, with 10 being the best possible rating. Dr. Hammond noted after that session that Meinhardt was stable and planned to return to work. On November 4, 2002, Meinhardt again rated her mood as an 8 on a scale of 10. Dr. Hammond testified that she released Meinhardt to return to work at that time. According to Dr. Hammond, Meinhardt had improved and was not showing any symptoms of PTSD or depression. Dr. Hammond testified that Meinhardt agreed that it was time to return to work.

On February 25, 2003, Dr. Hammond met with Meinhardt again and Meinhardt reported that her condition had worsened. Dr. Hammond testified that Meinhardt told her that she had quit taking her medication in November because “she thought she would be okay without [it]” and that she had quit attending counseling sessions. According to Dr. Hammond, this reaction was not uncommon, but, nevertheless, she was astounded that Meinhardt had stopped taking her medication. Meinhardt also informed Dr. Hammond that she had quit her job. Dr. Hammond testified that she immediately prescribed Meinhardt an antidepressant after learning this information.

On March 13, 2003, Meinhardt returned to Dr. Hammond for treatment. At that time, Meinhardt had been taking an antidepressant but had not yet returned to participate in counseling. Meinhardt rated her mood a 1 out of a possible 10. Dr. Hammond described Meinhardt’s condition in March 2003 as “very poor.” According to Dr. Hammond, Meinhardt’s functional level had deteriorated because Meinhardt had stopped taking her medication and attending counseling sessions. Meinhardt missed follow-up appointments with Dr. Hammond in April and May.

Meinhardt testified that she stopped seeing Dr. Hammond for treatment in March 2003 because she believed that she was not progressing under Dr. Hammond’s care. Meinhardt testified that she stopped taking her medication when she stopped seeing Dr. Hammond. Although Mein-hardt admitted that her condition had improved while she was on the medication, she testified that she stopped taking the medication because “she felt like she was well.” On cross-examination, Meinhardt admitted that her condition declined after she stopped taking her medication and attending counseling sessions. Meinhardt acknowledged that Dr. Hammond had emphasized the necessity of taking the medication and participating in counseling and that Dr. Hammond had warned her of the risks associated with not continuing the treatment. Meinhardt testified that Dr. Hammond encouraged her to return to therapy and to take her medication because, without them, her mental condition would worsen. Meinhardt further testified that Dr. Hammond had explained that her failure to take her medication would likely result in permanent problems. Meinhardt testified that after she stopped seeing Dr. Hammond in March 2003, she received numerous calls from her workers’ compensation case manager encouraging her to return to Dr. Hammond for treatment or to seek treatment from another mental-health-care professional.

In a May 15, 2003, letter to Teresa Hamby, a workers’ compensation case manager assigned to Meinhardt’s case, Dr. Hammond expressed her concern over Me-inhardt’s deteriorated condition. Dr. Hammond noted that Meinhardt’s PTSD and depression appeared much worse. In her letter, Dr. Hammond stated that she “believe[d] this could have been totally avoided had [Meinhardt] stayed on her medications and in therapy.”

Dr. Hammond testified that in the spring of 2003 her medical opinion regarding Meinhardt’s treatment was that medications would have improved Meinhardt’s mental condition. Dr. Hammond explained that there were risks to taking Serzone, the antidepressant prescribed to Meinhardt, but that the risks were “fairly small.” Dr. Hammond testified that Ser-zone can cause liver failure but that that generally occurs in the first two weeks to six months of treatment. Dr. Hammond testified that she had monitored Meinhardt for side effects while she was taking the drug and had found no adverse effects to Meinhardt’s liver.

Dr. Hammond testified that the longer a patient is sick or depressed, the harder the patient’s condition is to treat. According to Dr. Hammond, if PTSD goes untreated, the condition can become chronic. Dr. Hammond testified that she could not predict how successful Meinhardt’s treatment would be after Meinhardt began taking her medication and attending counseling sessions for a second time. Dr. Hammond testified that she did not think Meinhardt had reached MMI at any time during her mental-health treatment. According to Dr. Hammond, Meinhardt cannot move towards reaching MMI without receiving the appropriate treatment.

After going without treatment for nearly one year, Meinhardt was referred to Dr. .Wilkerson, a psychiatrist, for a “workers’ compensation evaluation.” Dr. Wilkerson testified by deposition that his initial evaluation of Meinhardt on February 27, 2004, revealed that she suffered from chronic PTSD and major depression; he recommended further treatment. Dr. Wilkerson explained that Meinhardt suffered from chronic PTSD because she had been suffering from PTSD for more than six months. After his' evaluation of Mein-hardt, Dr. Wilkerson recommended that she return to counseling and begin taking her antidepressant medication again. At Meinhardt’s next visit on April 8, 2004, Dr. Wilkerson prescribed Remeron, an antidepressant. Meinhardt reported to Dr. Wilkerson a third time on May 6, 2004; Dr. Wilkerson noted Meinhardt’s condition had improved. During her June 10, 2004, visit with Dr. Wilkerson, Meinhardt reported that she had had two panic attacks. At that visit, Dr. Wilkerson changed Mein-hardt’s prescription antidepressant to Zoloft. Dr. Wilkerson last saw Meinhardt on July 15, 2004. According to Dr. Wilkerson, Meinhardt’s condition at that time had deteriorated somewhat, and, as a result, he had adjusted her medication.

Dr. Wilkerson testified that, even with treatment, Meinhardt continues to suffer symptoms of depression and PTSD, and will likely suffer some degree of symptoms for the foreseeable future. Dr. Wilkerson acknowledged that Meinhardt’s condition improved somewhat with treatment but opined that Meinhardt had reached a plateau in her treatment. Dr. Wilkerson testified that he did not believe that Mein-hardt would be able to return to any type of gainful employment given the nature of her injuries and her continuing symptoms. Dr. Wilkerson placed Meinhardt at MMI “around [Meinhardt’s] second [April 8, 2004,] or third [May 6, 2004,] visit” to his office for treatment.

On May 18, 2004, Dr. Joseph Law, Jr., a psychologist, evaluated Meinhardt. Dr. Law testified that Meinhardt had complained that she suffered from panic attacks, depression, and nightmares. After administering several psychological tests, reviewing Meinhardt’s medical records, and interviewing Meinhardt, Dr. Law diagnosed Meinhardt with PTSD and depression. Dr. Law testified that Meinhardt had reached a plateau in her treatment and that the focus.is now on helping her live with her condition. Dr. Law testified that Meinhardt would not be a good candidate to participate in a vocational program or a job-placement program. According to Dr. Law, Meinhardt possesses the skills necessary to work but is unable to focus because of her anxiety and her related ongoing mental-health problems. On cross-examination, Dr. Law noted that discontinuing treatment such as counseling and medication for months and then returning later for treatment seriously compromises the treatment process.

Before addressing the issues raised by the parties on appeal, we note that when this court reviews a trial court’s factual findings in a workers’ compensation case, those findings “will not be reversed if [they are] supported by substantial evidence.” § 25 — 5—81(e)(2), Ala.Code 1975. In light of that principle of review, “ ‘the trial court’s findings on disputed evidence in a workers’ compensation case are conclusive,’ ” and this court must not “ ‘weigh the evidence before the trial court.’ ” Ex parte Golden Poultry Co., 772 So.2d 1175, 1176 (Ala.2000) (quoting Ex parte Ellenburg, 627 So.2d 398, 399 (Ala.1993), and Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995)). Moreover, this court reviews the facts “in the light most favorable to the findings of the trial court.” Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996). A trial court’s legal conclusions, however, are afforded no presumption of correctness, and this court reviews them de novo. Ex parte Cash, 624 So.2d 576 (Ala.1993); see also § 25-5~81(e)(l), Ala.Code 1975.

We find the resolution of the following issue to be dispositive of Mein-hardt’s appeal. Meinhardt asserts that § 25-5-57(a)(4) provides for the compensation of employees who suffer from “permanent total disability” and that, because one cannot be deemed permanently and totally disabled without first reaching MMI, the trial court’s determination that she had reached MMI on May 1, 2004, precludes the application of § 25-5-57(a)(4)d., Ala. Code 1975. We agree.

Section 25-5-57(a)(4)d. defines “permanent total disability” and provides that “[a]ny employee whose disability results from an injury or impairment and who shall have refused to undergo physical or vocational rehabilitation' or to accept reasonable accommodation shall not be deemed permanently and totally disabled.” In Clear Creek Transportation, Inc. v. Peebles, 911 So.2d 1059 (Ala.CivApp.2004), this court held that the penalty provision found in § 25-5-57(a)(4)d. applies to “employees who, after having reached MMI, ... are incapable of engaging in gainful employment before undergoing any physical or vocational rehabilitation but who would have some degree of capacity to engage in gainful employment if they were to undergo physical or vocational rehabilitation.” 911 So.2d at 1064 (emphasis added). In so holding, this court explained:

“The last sentence of paragraph d. of § 25-5-57(a)(4) clearly applies only to those employees who are totally disabled. First, as noted, it is in that section of the statute entitled by the Legislature ‘Permanent Total Disability.’ More significantly, the language used by the Legislature makes it clear that this sentence applies to totally disabled employees. Finally, the sanction imposed by this provision for an employee’s refusal to undergo rehabilitation is the disqualification of the employee from receiving fotaZ-disability benefits. If the employee were not totally disabled in the first instance (that is, in the absence of rehabilitation) the only sanction levied by the statute would be no sanction at all.”

Peebles, 911 So.2d at 1064-65.

In its judgment, the trial court concluded, as a matter of law, that Meinhardt was permanently and totally disabled. However, relying on § 25-5-57(a)(4)d., it declined to award permanent and total disability benefits because Meinhardt had failed to “mitigate her damages.” The trial court found that Meinhardt had refused psychological treatment as of November 2002 and that Meinhardt had refused to attend any further psychiatric appointments with Dr. Hammond after March 2003. The trial court further found that Meinhardt had resumed psychiatric treatment with Dr. Wilkerson in February 2004. However, the trial court found that Meinhardt had remained noncompliant with prescribed psychological treatment and that, according to Dr. Wilkerson, Meinhardt had not begun psychological therapy as of the date of trial.

SAAD’S contends that Meinhardt’s alleged noncompliance with prescribed psychological treatment at the time of trial reveals that Meinhardt continued to refuse treatment, not only before she reached MMI, but also after she reached MMI. Although we recognize that a trial court’s findings on disputed evidence in a workers’ compensation case are conclusive, and although we are not allowed to reweigh the evidence before the trial court, this court is authorized to determine whether the trial court’s decision is supported by sufficient evidence. Ex parte Golden Poultry Co., 772 So.2d at 1176-77. The findings of the trial court will be reversed if they are not supported by substantial evidence. See § 25 — 5—81(e)(2), Ala.Code 1975 (“In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”).

After reviewing the record, including Dr. Wilkerson’s deposition testimony, we conclude that the record does not contain substantial evidence supporting the trial court’s finding that Meinhardt continued to refuse treatment after she reached MMI. In his deposition testimony, Dr. Wilkerson testified that he “thought [Me-inhardt] needed to return to therapy.” However, Dr. Wilkerson testified that he did not refer Meinhardt to a psychotherapist. Furthermore, during a June 10, 2004, appointment with Meinhardt, Dr. Wilkerson noted that, at that time, Mein-hardt was seeing a psychologist. It is undisputed that Meinhardt attended all of her scheduled monthly appointments with' Dr. Wilkerson after February 2004. Given the evidence presented at trial, we cannot agree with SAAD’S contention that Mein-hardt failed to comply with prescribed psy-ehological treatment after she reached MMI.

The trial court determined from the evidence that Meinhardt had reached MMI for her mental condition on May 1, 2004, and it found that Meinhardt had refused treatment during a period of time before she had reached MMI, i.e., before she was entitled to any permanent benefits. This court recognized in Peebles that the penalty provision found in § 25-5-57(a)(4)d. applies to employees who have reached MMI and are thereafter deemed totally disabled. Therefore, we must reverse the judgment of the trial court insofar as it declined to award Meinhardt permanent and total disability benefits and remand this cause for the trial court to reconsider its judgment in a manner consistent with this opinion.

Before addressing the issues raised in the cross-appeal, we note that § 25-5-77(d), Ala.Code 1975, allows for the suspension of payment of temporary-total-disability benefits to an employee if the employee refuses to accept medical treatment offered by the employer, thus providing a penalty for those who refuse treatment before reaching MMI. Section 25-5-77(b) provides as follows:

“If the injured employee refuses to comply with reasonable request for examination, or refuses to accept the medical service or physical rehabilitation, which the employer elects to furnish under this chapter, the employee’s right to compensation shall be suspended and no compensation shall be payable for the period of the refusal.”

Alabama law provides that benefits will not be suspended if the refusal to undergo proposed medical or surgical treatment is reasonable. Health Health Care Auth. of Huntsville v. Henry, 600 So.2d 324, 327 (Ala.Civ.App.1992); Mike Makemson Logging v. Colburn, 600 So.2d 1049, 1051 (Ala.Civ.App.1992).

In this case, the trial court concluded that Meinhardt had unreasonably refused medical services from November 10, 2002, to May 1, 2004, the date that Mein-hardt reached MMI, and, therefore, that she was not entitled to temporary-total-disability benefits during that period of time. In her brief on appeal, Meinhardt maintains that the penalty found in § 25-5 — 77(b) is the only penalty applicable in the instant case. Meinhardt goes on to state generally in her brief on appeal that her purported refusal to continue psychological treatment was reasonable in light of the facts of this case; however, she fails to address her contention with any specificity or support her contention with any case-law. Therefore, we will not address this issue on appeal. See McLemore v. Fleming, 604 So.2d 353, 353 (Ala.l992)(holding that this court will not create legal arguments for an appellant); see also Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994) (it is not the function of the appellate courts to “make and address legal arguments for a party based on undeli-neated general propositions not supported by sufficient authority or argument”).

SAAD’S contends on cross-appeal that the trial court should have found the date of MMI to be November 4, 2002, the date Dr. Hammond released Meinhardt to return to work. When MMI is reached depends on the circumstances of the particular case. Hillery v. MacMillan Bloedel, Inc., 717 So.2d 824 (Ala.Civ.App.1998); Pemco Aeroplex, Inc. v. Johnson, 634 So.2d 1018, 1020 (Ala.Civ.App.1994).

“The date of MMI indicates the date on which the claimant has reached such a plateau that there is no further medical care or treatment that could be reasonably anticipated to lessen the claimant’s disability.” G.UB.MK. Constructors v. Traffanstedt, 726 So.2d 704, 709 (Ala.Civ.App.1998). “ ‘[MMI] does not mean complete cure or total recovery from the work-related injury.’ ” Ex parte Phenix Rental Ctr., 873 So.2d 226, 229 (Ala.2003)(quoting 1 Terry A. Moore, Alabama’s Workers’ Compensation § 13:5 (1998)). .

In this case, Dr. Hammond testified that Meinhardt would continue to benefit from further treatment even after she informed Meinhardt that she could return to work in November 2002. SAAD’S concedes on appeal that Dr. Hammond’s testimony reveals that Meinhardt had not reached MMI as of November 2002. Dr. Wilkerson placed Meinhardt at MMI between April 8, 2004, and May 6, 2004. According to Dr. Wilkerson, Meinhardt had reached a plateau in her recovery and any further treatment she received would have only a minimal effect on her mental condition. In its judgment, the trial court found that Meinhardt had reached MMI on May 1, 2004. There is substantial evidence to support that finding. Therefore, we affirm the judgment of the trial court as to this issue.

SAAD’S also contends that the trial court erred by calculating Mein-hardt’s average weekly wage. In its judgment, the trial court determined Mein-hardt’s average weekly wage to be $485; however, SAAD’S maintains that Mein-hardt’s average weekly wage was $417.76. SAAD’S arrives at the $417.76 figure by averaging Meinhardt’s salary of $14,621.50 over the 35-week period she worked before her March 7, 2002, injury.

Section 25-5-57(b), Ala.Code 1975, a part of the Act, provides a method for computing an employee’s average weekly wage when the employee is injured in the first year of his or her employment. That section provides:

“Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained. Where by reason of the shortness of the time during which the employee has been in the employment of his or her employer or the casual nature or terms of the employment it is impracticable to compute the average weekly earnings as above defined, regard shall be had to the average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed at the same . work by the same employer, and if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district.”

This court has held that “ ‘where the formulas for determining average weekly earnings set out [in the statute] are impracticable to apply in a particular case so as to arrive at a just and fair result to both parties, much must be left to the sound judgment and judicial discretion of the trial court.’” Shields v. GTI Corp., 607 So.2d 253, 255 (Ala.Civ.App.1992) (quoting Stevison v. Qualified Pers., Inc., 571 So.2d 1178, 1180 (Ala.Civ.App.1990)). The burden is on the employee to present evidence from which the court can compute his or her average weekly wage. W.W. Dyar & Sons, Inc. v. Cochran, 693 So.2d 527, 529 (Ala.Civ.App.1997).

The calculation method in the first sentence of § 25-5-57(b), dividing the earnings by the number of weeks of employment, is appropriate given the length of Meinhardt’s employment. Although § 25-5-57(b) goes on to address circumstances in which the “shortness of time” during which the employee has been employed or “the casual nature or terms of the employment” makes it “impracticable” to compute the average weekly earnings, the circumstances of this case do not support a deviation from the calculation method set forth in the first sentence of § 25-5-57(b). Me-inhardt’s 35-week period of employment was not so short, nor so casual in nature, as to make it “impracticable” to compute her average weekly earnings in accordance with the first sentence of § 25-5-57(b). The record reveals that Meinhardt chose to work fewer hours on average than other employees during the 35-week period. It is both “just and fair” to calculate Mein-hardt’s average weekly wage based on the amount of time she worked. Therefore, we reverse the judgment of the trial court on this issue.

Finally, SAAD’S questions whether psychiatric care is covered under the Act. In its brief on appeal, however, SAAD’S answers this question in the affirmative and concedes that psychiatric care is a medical benefit under the Act. SAAD’S maintains that psychiatrists should be deemed medical-care providers under the Act and, thus, that treatment by a psychiatrist after an employee suffers a compensable injury should be paid for by employers. Because SAAD’S concedes this issue on appeal, we will not address the issue further.

APPLICATION OVERRULED; OPINION OF NOVEMBER 18, 2005, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

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

THOMPSON, J., concurs in part and dissents in part, with writing.

MURDOCK, Judge,

concurring in the result.

I concur in the result reached by the main opinion.

SAAD’S makes the following argument in its brief to this court:

“The concern that an employee ‘may not attempt to keep himself or herself in a position to continue receiving total-disability benefits by simply refusing to undergo rehabilitation’ was correctly identified by this Court in [Clear Creek Transportation, Inc. v. Peebles, 911 So.2d 1059 (Ala.Civ.App.2004)]. That reasoning, however, would support a decision that there is no reason to differentiate pre-MMI refusals of physical rehabilitation from post-MMI refusals— especially when the statute contains no such distinction.”

SAAD’S is correct that the statute contains “no such distinction.” The statute simply provides that “[a]ny employee whose disability results from an injury or impairment and who shall have refused to undergo physical or vocational rehabilitation or to accept a reasonable accommodation shall not be deemed permanently and totally disabled.” § 25-5-57(a)(4)d.

This court’s opinion in Clear Creek Transportation, Inc. v. Peebles, 911 So.2d 1059 (Ala.Civ.App.2004), which I authored, did not add to or take anything from the above-quoted statute. In the course of analyzing the issue of what constitutes “rehabilitation,” we did note that the statute applies to “employees who, after having reached MMI, ... are incapable of engaging in gainful employment ... but who would have some degree of capacity to engage in gainful employment if they were to undergo physical or vocational rehabilitation.” 911 So.2d at 1064 (emphasis added). This statement, however, was intended merely to restate the statute. The point being made was simply that § 25-5-57(a)(4)d. applies only to employees who are, and will continue permanently to be, totally disabled. (The phrase “after having reached MMI” was intended to provide the temporal context for the employee’s condition, not for the employee’s refusal to undergo rehabilitation.) A more precise and artful way of saying the same thing might have been a reference to “employees who [permanently] are incapable of engaging in gainful employment ... but who would [not be in that condition but for a refusal to undergo physical or vocational rehabilitation.]”

That said, I nonetheless must concur in the result reached in this case. Although it is a close question that may merit further appellate review, I am not persuaded that the interruption of psychological counseling and psychiatric treatment in this case constituted a “refus[al] to undergo physical or vocational rehabilitation” within the meaning of § 25-5-57.

THOMPSON, Judge,

concurring in part and dissenting in part.

I must dissent from the majority opinion insofar as it reverses the trial court’s calculation of Meinhardt’s average weekly wage. Given the length of Meinhardt’s employment, the casual nature of her employment, and the casual terms of her employment, the trial court was within its discretion to compute Meinhardt’s average weekly wage based on the average weekly wage of similarly situated SAAD’S employees.

      . The record indicates, and the trial court noted in its final judgment, that SAAD’S conceded that Meinhardt’s injuries were compen-sable notwithstanding the provisions of § 25-5-1(9), Ala.Code 1975, which defines "injury” for purposes of the Act and specifically excludes from that definition any injury "caused by the act of a third person ... intended to injure the employee because of reasons personal to him or her and not directed against him or her as an employee or because of his or her employment.”

      .' Meinhardt is a licensed practical nurse; she received her nursing degree in 1990 from Southwest State Technical College.

      . The parties specifically excluded Mein-hardt’s mental condition from the stipulation regarding MMI made before trial.

      . Meinhardt also argues on appeal that the penalty provision found in § 25 — 5—57(a)(4)d. for the refusal to undergo physical and vocational rehabilitation does not include a penalty for the refusal to undergo psychological or psychiatric treatment. By concluding that the trial court incorrectly' determined that the penalty provision of § 25 — 5—57(a)(4)d. applied to Meinhardt based on her refusal to undergo treatment before she had reached MMI, we need not address the issue whether the trial court impermissibly expanded the penalty provision in § 25-5-57(a)(4)d. to include a refusal to undergo psychological and psychiatric treatment.

      . Indeed, SAAD’S argues, rehabilitation, by definition, occurs before maximum medical improvement is reached.

        . By way of a comparison, unlike the reference to "physical or vocational” rehabilitation in the quoted passage from § 25-5-57, § 25-5-77(b), Ala.Code 1975, provides a penalty (the suspension of compensation benefits) during the period of an employee’s "refus[al] to accept the medical service or physical rehabilitation, which the employer elects to furnish under this chapter.” (Emphasis added.) Section 25-5-1(14), Ala.Code 1975, defines "medical” as "[a]ll services, treatment, or equipment provided by a provider.” (Emphasis added.) Section 25-5-1(13), Ala.Code 1975, defines "providers” as including psychologists and other persons or entities providing "treatment, service, or equipment.”


author: CRAWLEY, Presiding Judge.

text:
    Judy Knowles FAUST v. Bryan W. KNOWLES.
    2040456.
    Court of Civil Appeals of Alabama.
    April 28, 2006.
    Rehearing Denied July 21, 2006.
    Certiorari Denied Sept. 15, 2006
    Alabama Supreme Court 1051599.

      Joan-Marie Kettell of Kettell & Campbell, L.L.P., Huntsville, for appellant.
    Liles C. Burke of Burke & Beuoy, P.C., Arab, for appellee.
   CRAWLEY, Presiding Judge.

Judy Knowles Faust (“the mother”) and Bryan W. Knowles (“the father”) were divorced on May 23, 2000. Pursuant to an agreement of the parties, the divorce judgment provided that the parties would have joint legal and physical custody of the parties’ two children, a son who was 13 years old and a daughter who was 10 years old at the time the trial of this action began in February 2004.

The agreement provided that the children were to reside with the father during the first and third weeks of each month and with the mother during the second and fourth weeks of each month. Neither party was to pay child support to the other; instead, each parent was to pay for half of the children’s expenses. The divorce judgment also provided that each party would pay half of the outstanding balance owed on their MasterCard credit-card account as of April 20, 2000, and that any charges made after that date would be the sole responsibility of the party making the charge.

On September 25, 2002, the mother filed a petition to modify the divorce judgment, seeking sole physical custody of the children and child support from the father and requesting that the father be granted supervised visitation with the children. The mother also sought to have the father held in contempt for his failure to pay his share of the children’s expenses, for his failure to return certain personal property to her, and for his failure to repay her certain loans that, she alleged, she had made to him. The father answered and counterclaimed, seeking sole physical custody of the children and child support from the mother. On June 17, 2003, the mother amended her petition, seeking to have the father held in contempt for his failure to refinance the loan and mortgage encumbering the former marital residence.

The trial began on February 10, 2004, but it was not concluded on that date and was continued to another date. On March 17, 2004, the mother amended her petition a second time, seeking a judgment for unauthorized cash advances totaling $11,020.00 that, she claimed, the father had incurred by using an equity-line credit card after the.date of the divorce. The father filed an answer and a motion to dismiss the second amended petition. On August 26, 2004, the father moved to dismiss the mother’s claims seeking payment for loans and debts allegedly owed by the father, asserting that those claims were barred by the applicable statute of limitations.

The trial resumed and was concluded on August 27, 2004. On October 28, 2004, the trial court entered a judgment denying both parties’ petitions for a modification of custody. The court entered a judgment in favor of the mother in the amount of $2,250.85 and ordered the mother to pay the father $321.80 per month in child support. The mother appeals.

I.

The mother contends that the trial court used the wrong standard in determining whether it should modify the child-custody provision of the divorce judgment.. The trial court’s judgment states, in pertinent part:

“The trial in this case generated considerably more heat than light onto issues plead[ed] by the parties. Suffice it to say that neither party has demonstrated that the other is unfit to be custodian for the minor children. As a result of the lack of evidence justifying a modification of the [divorce judgment] with regard to the initial order concerning custody, the court declines to modify the custody provisions .... ”

(Emphasis added.) The trial court apparently determined that neither parent was entitled to sole physical custody of the children because neither parent had proven that the other was unfit. Cf Ex parte Terry, 494 So.2d 628 (Ala.1986) (holding that in a custody dispute between a parent and a nonparent the parent is entitled to custody unless he or she is shown to be unfit). Because the divorce judgment gave the parties joint physical custody, however, this case is governed by Ex parte Couch, 521 So.2d 987 (Ala.1988), which held that the best-interest standard applies to the modification of an existing joint-custody arrangement. See Nave v. Nave, 942 So.2d 372 (Ala.Civ.App.2005).

When a trial court concludes that the moving party in a custody-modification ease has not met his or her burden of proof, but the court has imposed upon that party an erroneously heavy burden, then this court has no authority to review the evidence to determine whether, using the correct burden of proof, the triad court’s judgment can be upheld. See Ex parte Perkins, 646 So.2d 46 (Ala.1994). Here, as in Perkins, we must reverse that portion of the judgment dealing with child-custody modification and remand the cause with instructions that the trial court reconsider the evidence in light of the correct “best interest” standard and determine whether a custody modification is warranted.

II.

The mother argues that the trial court erred in ordering her to pay child support; in the alternative, she claims that the trial court miscalculated the amount of child support she is obligated to pay. Because of our disposition of the custody-modification issue, we pretermit any discussion of child support at this time.

III.

The mother insists that the trial court erred by failing to find the father in contempt for not paying half of the children’s expenses, as the divorce judgment called for. The mother presented evidence indicating that she had paid $6,363.25 for school lunches, medical expenses, Scholar’s Bowl costs, and miscellaneous other expenses related to the children; that she had asked the father to reimburse her for half of those expenses; and that the father had refused to pay her. The father testified (and the mother acknowledged) that, when the children were in his custody, he had always paid all the children’s expenses and had never sought any reimbursement from the mother. Under the circumstances, the father said that he did not believe he owed the mother any reimbursement for expenses she had incurred when the children were with her.

The trial court made no express finding with respect to the mother’s claim that the father should be held in contempt arid required to reimburse her. However, by concluding that “[a]ll relief not expressly granted herein is deemed denied,” the trial court denied the mother’s claim. The trial court must have believed the father’s testimony that, without asking for reimbursement, he had paid sums equivalent to those the mother claimed to have spent on the children. See Ex parte Fann, 810 So.2d 631, 633 (Ala.2001) (“ ‘It is ... well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).”).

The mother also contends that the court erred by failing to find the father in contempt for his nonpayment of postdivorce credit-card debts and loans she made to him. The divorce judgment provided that each party would pay half of the outstanding balance owed on their MasterCard credit-card account as of April 20, 2000, and that any charges made after that date would be the sole responsibility of the party making the charge. The father testified that for approximately 18 months after the divorce the parties attempted to reconcile, lived together as husband and wife, shared expenses, and took family vacations together. He said that most of the credit-card charges about which the mother complained were either the mother’s gifts to him or were family expenses incurred during the period that, he said, the parties were sharing expenses. The father requested that the trial court allow him a setoff for half of what he spent while the parties were residing together and sharing expenses.

The mother denied that the parties had continued to live together as husband and wife after the divorce, although she did acknowledge that she had permitted the father to “tag along” on her vacations with the children. The mother testified that she had allowed the father to use the credit card and that the father had promised to repay what he charged, but he never did. The mother also testified that she had made loans to the father totaling $1,400. The mother’s brother supported the father’s version of the events, testifying that every time he visited the former marital home (which had been awarded to the mother in the divorce judgment) during the 18-month period at issue, the father was present.

On this issue, the trial court made the following findings:

“[W]hile there were a number of allegations and assertions made during the course of the trial as to whether or not the parties continued a relationship after the date of the divorce, there is a substantial body of evidence to indicate that while [the parties’] relationship might not have been continuous and under the same roof, that they intermingled their finances to the point that neither is able to give a convincing rendition of the contributions and obligations of the various parties during the Summer and Fall of 2000. It is obvious that the [mother] was in a better financial condition and was very generous in her treatment of the [father], given the fact that they were divorced at the time
“With regard to the amount claimed by the [mother] against [the father], the court enters judgment in favor of the [mother] and against the [father] in the amount of $2,250.85. Although the [mother] claims to have ‘loaned’ the [father] $1,400 more or less, there were no notations on the checks upon which she relies indicating the purpose of the check[s].”

“Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court. Curtis White Construction Co. v. Butts & Billingsley Construction Co., 473 So.2d 1040 (Ala.1985).” Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994).

“ ‘[0]ur standard of review is very limited in cases where the evidence is presented ore tenus. A ... determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So.2d 440 (Ala.Civ.App.1989), and Vail v. Vail, 532 So.2d 639 (Ala.Civ.App.1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble, 562 So.2d 1343 (Ala.Civ.App.1990); Flowers v. Flowers, 479 So.2d 1257 (Ala.Civ.App.1985).’

“Phillips v. Phillips, 622 So.2d [410] at 412 [ (Ala.Civ.App.1993) ].

“Only where the findings are not supported by the evidence and are clearly erroneous should an appellate court decide that the facts are not as the trial court found them to be. [Ex parte ] Jones, 620 So.2d [4] at 7 [ (Ala.1992) ]; Curtis White, 473 So.2d at 1041.”

Ex parte Perkins, 646 So.2d at 47. We conclude that the trial court’s $2,250.85 judgment in favor of the mother is supported by the evidence and due to be affirmed.

Conclusion

That portion of the trial court’s order entering a judgment in favor of the mother in the amount of $2,250.85 and denying other monetary relief sought by the mother is affirmed. That part of the trial court’s judgment declining to modify custody is reversed, and the cause is remanded with directions to reconsider the evidence in light of the “best interest” standard and to determine whether a modification of custody is warranted.

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

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