author: PITTMAN, Judge. MURDOCK, Judge,

text:
    T.D.P. v. D.D.P. and W.H.P.
    2050098.
    Court of Civil Appeals of Alabama.
    Aug. 4, 2006.

      Frances R. Niccolai, Mobile, for appellant.
    W.A. Kimbrough, Jr., Mobile, for appel-lees.
   PITTMAN, Judge.

T.D.P. (“the mother”) appeals from a judgment determining that the mother’s six-year-old daughter, A.N.P., and three-year-old son, W.H.P. (A.N.P. and W.H.P. are hereinafter collectively referred to as “the children”), were dependent and awarding custody of the children to their paternal grandparents, D.D.P. and W.H.P. (“the paternal grandparents”). We affirm in part and reverse in part.

On September 8, 2004, the paternal grandparents arrived at the mother’s residence to return W.H.P. following a weekend visitation and discovered the residence to be in disarray and the refrigerator to be empty; the paternal grandparents immediately went to the Mobile County Department of Human Resources (“DHR”) to request an investigation into the mother’s care of the children. The next day, the mother was arrested for possession of a controlled substance and incarcerated. On September 10, 2004, the paternal grandparents filed a petition with the Mobile Juvenile Court requesting temporary custody of the children due to the mother’s situation; the juvenile court granted that petition the same day. In October 2004, the children’s maternal grandparents filed a petition seeking to intervene in the pending custody action and requesting custody of the children; the trial court granted their petition to intervene.

The juvenile court conducted an ore ten-us proceeding to consider the competing petitions for custody on January 27, 2005. One week later, the juvenile court entered a judgment finding that the children were dependent pursuant to Ala.Code 1975, § 12-15-1 et seq., and ordering the children’s guardian ad litem to secure certain information regarding the interested parties, including home studies of both sets of grandparents, school records of the children, and police records concerning the mother. Pendente lite custody of the children was continued with the paternal grandparents, but a dispositional hearing was scheduled for April 27, 2005.

At the April 27, 2005, hearing, the paternal grandfather, the maternal grandparents, the mother, and a family friend of the maternal grandparents testified and offered documentary evidence. The paternal grandfather testified that he and his wife had been awarded visitation with the children two years earlier, after the death of their son, the children’s father. On October 21, 2005, the juvenile court entered a judgment awarding custody of the children to the paternal grandparents. In that judgment, the maternal grandparents’ petition for custody was denied, and the mother was awarded expanded visitation with the children (but the judgment required that the mother’s visitation be supervised by the maternal grandparents); however, the juvenile court stated that because of the “extreme expense” involved in exercising visitation, the mother would not be required to pay child support to the paternal grandparents. The mother filed a timely postjudgment motion, and the juvenile court amended the judgment by clarifying the visitation schedule and awarding an attorney fee to the mother’s court-appointed attorney. The mother appeals.

The mother challenges the juvenile court’s determination of dependency and its award of custody of the children to the paternal grandparents. Initially, we note that when evidence is presented ore tenus, the trial court’s judgment is presumed to be correct and will be set aside only if it is plainly and palpably wrong. Lucero v. Lucero, 485 So.2d 847, 348 (Ala.Civ.App.1986). A finding of dependency must be supported by clear and convincing evidence. Ala.Code 1975, § 12 — 15—65(f); see also M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court’s ruling in a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. See, e.g., R.G. v. Calhoun County Dep’t of Human Res., 716 So.2d 219, 221 (Ala.Civ.App.1998); G.C. v. G.D., 712 So.2d 1091, 1093 (Ala.Civ.App.1997); and J.M. v. State Dep’t of Human Res., 686 So.2d 1253, 1255 (Ala.Civ.App.1996).

Alabama Code 1975, § 12-15-l(10)m., provides that a child may be declared dependent if he or she is “for any ... cause ... in need of the care and protection of the state.” This subsection has been held to give the court the authority to declare a child dependent under the totality of the circumstances. Martin v. State ex rel. Alabama Dep’t of Human Res., 502 So.2d 769, 771 (Ala.Civ.App.1987); see also Kennedy v. State Dep’t of Human Res., 535 So.2d 168, 170 (Ala.Civ.App.1988). The transfer of custody upon a finding of dependency is governed by the child’s best interests. Jones v. Webb, 524 So.2d 374, 374 (Ala.Civ.App.1988).

The record reveals that the mother had a history of marijuana abuse. The mother admitted that she had lost her nursing license in October 2002 when she tested positive for THC (the chief intoxicant found in marijuana) during a work-related drug screening. The mother stated that the death of her husband followed shortly by the birth of W.H.P. had initially prevented her from getting proper treatment for her drug-dependency problem. She stated that she had completed an inpatient drug-treatment program at a facility called The Haven, but that she had been placed on a waiting list for several months before finally being accepted into a 12-week intensive outpatient drug-rehabilitation program. The mother testified that she was within a few weeks of completing that program, that she had not tested positive for any illegal drugs since the children had been removed from her home, and that she had already been hired to work at a local hospital as a nursing aide until she could petition the State Nursing Board to regain her nursing license later in the year.

The mother testified that, although she had been arrested on September 9, 2004, and charged with possession of illegal drugs, she had been informed by the local district attorney that those charges would not be presented to a grand jury and had been dropped. She testified that the arresting officer told her that, upon further investigation, the officer had concluded that “they [were] in the middle of a domestic relations battle and [he] wished they had never got into it.”

At the time of trial in 2005, the mother had been living in her recently deceased grandmother’s house for approximately four months to prepare it for sale. The mother stated that, after completing that project, she wanted to obtain housing in the same school district that the children had attended when she and the children had previously lived with the maternal grandparents. The mother testified that although she had been working as a waitress at the time the children were removed from her custody, she had quit her job to concentrate on successfully completing the drug-rehabilitation program, which included mandatory meetings five nights a week. She opined that she would be a better caregiver than either set of grandparents.

In contrast to the mother’s testimony was the paternal grandfather’s testimony regarding the living conditions of the trailer where the mother and the children were staying when the children were removed from the mother’s custody by court order in September 2004. The grandfather testified that the mother’s refrigerator was empty, that her residence was in disarray, and that, within 24 hours of discovering those conditions, the mother had been arrested for possible drug-related offenses. By the time of trial seven months later, the mother was unemployed and was involved in an intensive drug-rehabilitation program. Based upon the totality of the circumstances summarized above, we conclude that the juvenile court could properly have concluded that the children were dependent.

The mother also contends that awarding custody of the children to the paternal grandparents constituted an abuse of discretion. The only testimony regarding the paternal grandparents’ ability to be custodians of the children was offered by the paternal grandfather. He stated that he and his wife lived in a one-bedroom camper that they had parked at Bay Resort Recreational Vehicle Park in Athens, Alabama, on a bluff overlooking the Tennessee River; he noted that their lot contained a steep drop of between 10 to 35 feet directly downhill to the river. The paternal grandfather opined that although there was a short wire fence that the children could easily step over, he did not believe the children could reach the edge of the bluff because it was 75 feet from the camper. He noted that his wife did not work outside the home unless she helped him run a concession stand that he owned and operated. Notably, although the paternal grandfather stated that he worked four days each week as a mobile-home escort driver, he did not offer any evidence of his monthly or annual income.

On the other hand, the paternal grandfather’s testimony was seriously disturbing in several respects. When questioned about any prior arrests or convictions, the paternal grandfather admitted that he had been convicted of felony possession of illegal substances with intent to distribute.

“Q: Have you ever been arrested?
“A: Yes, ma’am, I have.
“Q: Have you ever been convicted?
“A: Yes, ma’am, I have.
“Q: What were you convicted of?
“A: Possession with intent to distribute.
“Q: Is that a felony?
“A: Yes, ma’am, it is.
“Q: So, you can’t vote?
“A: No, ma’am....
“Q: How many times have you been arrested?
“A: One felony.
“Q: One felony, any other arrests?
“A: Traffic tickets, yes ma’am and uh, sales tax.
“Q: Sales tax what, evasion?
“A: No, ma’am. Failure to file. I didn’t file them on time. I had some bad checks years ago. That’s all I remember.”

The paternal grandfather also admitted that on one occasion, when he and his wife had taken the children to his sister’s house to be babysat, A.N.P. had been sexually molested.

“Q: Prior to your son’s death, did ya’ll babysit A.N.P. from time to time?
“A: Yes, ma’am, quite often.
“Q: Did members of your family babysit A.N.P. from time to time?
“A: Yes.
“Q: Okay are you aware of an incident where A.N.P. was sexually molested by being babysat by a member of your family?
“A: It was — yes, yes. My son told me that.
“Q: She was sexually molested when she was being babysat by your sister and her boyfriend; is that correct?
“A: My sister — boyfriend didn’t do it. There was a child there that supposedly had done this. I mean a five or six year old baby.
“Q: But A.N.P. was being babysat by your sister and her boyfriend at the time; is that correct?
“A: Yes, ma’am. And she’s been back out there since then....
“Q: And have you — Have you, since you’ve had [custody of the children] have you left them with the boyfriend?
“A: Yes, ma’am.
“Q: You have?
“A: Yes, ma’am.”

The record indicates that the fact that A.N.P. was sexually assaulted was not disputed. Regardless of the fact that neither the paternal grandfather’s sister nor the sister’s boyfriend had been charged with a crime, the paternal grandfather admitted that he continued to take the children to that sister’s house and continued to allow her or her boyfriend to babysit the children on a regular basis.

The maternal grandparents’ testimony was in sharp contrast to the paternal grandfather’s testimony. The maternal grandfather stated that throughout the mother’s marriage he and his wife had regularly babysat the children at their five-bedroom house. The maternal grandfather also testified that he was employed by the Mobile County Engineering Department, offered copies of his most recent paycheck, and noted that he would be allowed to add the children to his employer-provided health-insurance plan.

The maternal grandmother testified that she had been married to the maternal grandfather for 38 years; she noted that each child had his or her own room, toys, and clothes when staying with the maternal grandparents at their house. Because the mother and the children had lived with the maternal grandparents for nearly a year following the father’s death by drug-overdose, the children had made numerous friends in the neighborhood. The maternal grandmother stated that she owned her own business and, therefore, possessed the ability to work flexible hours in order to spend time with the children. She noted that the mother’s oldest child (from a previous marriage) had been living with the maternal grandparents during the school year because the child was a member of the local school’s volleyball team and chorus. The maternal grandmother stated that she and her husband would provide stability in familiar surroundings for the children until such time as the mother completed her drug-rehabilitation program, rejoined the workforce, and petitioned the court for the return of custody of the children.

As noted previously, the overriding consideration in a child-custody case is the best interests of the children. See Jones v. Webb, supra; see also Jensen v. Short, 494 So.2d 90, 91-92 (Ala.Civ.App.1986). Factors to be considered by the trial court in determining what is in the best interests of the children include the sex, age, and health of the children; the children’s emotional, social, moral, and material needs; and the custodial parties’ ages, character, stability, health, and home environment. See Johnson v. Sparks, 437 So.2d 1308, 1309 (Ala.Civ.App.1983); see also Jensen v. Short, supra.

Based upon the testimony presented at trial, we cannot conclude that substantial evidence supports the juvenile court’s determination that awarding custody of the children to the paternal grandparents was in the children’s best interests. The evidence at trial established that the paternal grandparents do not live in a suitable residence conducive to support the activities and safety of small children. In addition, the paternal grandfather not only admitted that he was a felon, who had been convicted of possession of illegal drugs with intent to distribute them, but also that he continued to place his young granddaughter in serious personal jeopardy by repeatedly leaving her at a residence where she had been sexually molested on a previous visit. We conclude, therefore, that the paternal grandparents did not meet their burden of proof that the children’s best interests would be served by their being awarded custody. Therefore, the juvenile court’s judgment awarding custody of the children to the paternal grandparents is due to be reversed.

We affirm the juvenile court’s judgment insofar as it determined that the children were dependent, and we reverse the judgment insofar as it awarded custody of the children to the paternal grandparents. The juvenile court must conduct another custody hearing and make a determination whether to return the children to the mother, with appropriate restrictions, or to place the children with the maternal grandparents.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON and BRYAN, JJ., concur.

CRAWLEY, P.J., concurs in the result, without writing.

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

MURDOCK, Judge,

concurring in the result.

I concur in the result. I write separately for the purpose of noting that on remand, the juvenile court, if it has not already done so while this case has been on appeal, must determine as a threshold matter whether the state of dependency that it found to exist in its October 21, 2005, judgment continues to exist. Based on the evidence presented at the last hearing conducted by the juvenile court, it certainly is foreseeable that the children no longer are dependent.

      . Following a search of the mother's residence, the mother was arrested when the investigating officer discovered a pair of marijuana cigarettes in a bedroom.

      . The guardian at litem stated that he had been unable to procure home studies of either set of grandparents before trial.

      . We note that in October 2004, when the children's maternal grandparents filed their petition seeking custody of the children, the mother had signed an affidavit stating that she had no objection to the juvenile court’s awarding temporary custody of the children to the maternal grandparents. Although the paternal grandparents assert that that statement was an enforceable voluntary relinquishment of custody, the mother essentially revoked that statement by contending at trial that she would be the best custodian for the children.


source: Caselaw Access Project

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

license: Public Domain

text:
    Charles B. ROBERSON v. Fred K. JOHNSON.
    2050428.
    Court of Civil Appeals of Alabama.
    Aug. 11, 2006.
    Pittman, J., concurred specially and filed an opinion, which Crawley, P.J., joined.
    Murdock, J., concurred in the result and filed an opinion.

      Curtis L. Whitmore, Huntsville, for appellant.
    Robert H. McKenzie, Florence, for ap-pellee.
   THOMPSON, Judge.

Charles B. Roberson appeals from a summary judgment entered in favor of Fred K. Johnson (“Fred”) on the issue of whether Gene Thomas Johnson and Vicki Jean Johnson (collectively, “the Johnsons”) fraudulently transferred $10,000 to Fred. We reverse and remand.

Sometime in late summer 2001, Roberson loaned the Johnsons $60,000, and the Johnsons issued him a promissory note in return. At an undisclosed time between September 2001 and November 2002, the Johnsons allegedly transferred $10,000 to Fred. In November 2002, the Johnsons jointly filed a petition for bankruptcy in the United States District Court for the Northern District of Alabama (“the bankruptcy court”). The Johnsons listed the $60,000 debt they owed to Roberson in a schedule of debts that they filed with their petition for bankruptcy.

On March 17, 2003, Roberson filed against the Johnsons an adversary proceeding in the bankruptcy court in which he asserted that the transfer of the $10,000 from the Johnsons to Fred was fraudulent because, he alleged, the Johnsons made it within one year of their filing for bankruptcy in violation 11 U.S.C. § 727(a)(2). Roberson also asserted that the adversary proceeding contesting the transfer was a “core proceeding” and, therefore, subject to the exclusive jurisdiction of the bankruptcy court. See 28 U.S.C. § 157(b)(1) and (2)(h) (noting that bankruptcy courts have jurisdiction over “core proceedings” and that “core proceedings” include “proceedings to determine, avoid, or recover fraudulent conveyances”). On July 22, 2003, the bankruptcy court dismissed Roberson’s adversary proceeding with prejudice due to his failure to comply with a pretrial order. The bankruptcy court subsequently discharged the Johnsons’ debts, including the $60,000 debt owed to Roberson.

On November 10, 2003, Roberson filed a complaint against Fred in the trial court alleging that in 2001 Roberson had loaned $60,000 to the Johnsons and that they had issued Roberson a promissory note in return. The complaint also asserted that the Johnsons had fraudulently transferred $10,000 to Fred and had subsequently filed for bankruptcy. Roberson further alleged that during the bankruptcy proceeding the Johnsons’ debt to Roberson had been discharged and that the Johnsons were not a party to the current action.

On January 13, 2004, Fred filed a motion to dismiss Roberson’s claims pursuant to Rule 12(b), Ala. R. Civ. P. In that motion, he asserted, among other things, that the trial court lacked subject-matter jurisdiction over the dispute. See Rule 12(b)(1), Ala. R. Civ. P. On February 13, 2004, the trial court denied Fred’s motion to dismiss. Fred answered the complaint on February 18, 2004, by entering a general denial.

On June 21, 2005, Fred filed a motion for a summary judgment pursuant to Rule 56, Ala. R. Civ.App. The only issue Fred raised in his motion for a summary judgment was that the trial court lacked subject-matter jurisdiction because, he alleged, the doctrine of “judicial estoppel” barred Roberson’s claims. Although Fred asserted that he was relying on the doctrine of “judicial estoppel,” it is apparent from the record that he was actually relying on the doctrine of “collateral estop-pel.” Fred accompanied his motion for a summary judgment with a narrative summary of undisputed facts. In his narrative summary, Fred reasserted that the John-sons’ debts, including the debt that they owed to Roberson, had been discharged by the bankruptcy court, that the bankruptcy court had exclusive jurisdiction over the matter, and that the bankruptcy court had fully disposed of the matter. Fred specifically asserted that the bankruptcy court’s discharge of the Johnsons’ debt estopped Roberson from bringing an action in state court regarding the alleged fraudulent transfer. Fred also attached three documents from the bankruptcy proceeding to his motion for a summary judgment; all of those documents related to the bankruptcy court’s discharge of the Johnsons’ debts and the bankruptcy court’s dismissal of Roberson’s adversary proceeding with prejudice.

On September 6, 2005, Roberson filed a motion to strike the three attachments to Fred’s summary judgment motion; the trial court granted that motion on September 9, 2005. In its order granting Roberson’s motion to strike, the trial court noted that “the [motion] for summary judgment is based on the assumption that there was a fraudulent transfer ... [and] [t]hat assumption will remain during the pendency [of the matter].”

On January 5, 2006, Roberson filed a document styled “plaintiffs second response to defendant’s motion for summary judgment.” In that filing, Roberson asserted that his action against Fred had been brought pursuant to § 8-9A-1 et seq., Ala.Code 1975, the Alabama Fraudulent Transfer Act (“the AUFTA”). Roberson acknowledged that his adversary proceeding against the Johnsons had been dismissed with prejudice by the bankruptcy court, but, he asserted, he was not estopped from pursuing the present action under the AUFTA against Fred, the transferee. Fred filed a “letter brief’ in response to Roberson’s January 5, 2006, filing. On January 18, 2006, the trial court entered a summary judgment in Fred’s favor; the trial court did not provide its reasoning for entering the summary judgment. Roberson timely appealed to our supreme court, which transferred the case to this court pursuant to § 12-2-7(6), Ala. Code 1975.

“Collateral estoppel is an affirmative defense. The standard for reviewing a defendant’s motion for a summary judgment based on an affirmative defense is well-established:
‘ “Where, as in this case, the defendant moves for a summary judgment based on an affirmative defense, this Court applies the following standard of review:
“ ‘ “When there is no genuine issue of material fact as to any element of an affirmative defense, ... and it is shown that the defendant is entitled to a judgment as a matter of law, summary judgment is proper. If there is a genuine issue of material fact as to any element of the affirmative defense, summary judgment is inappropriate. Rule 56(c), Ala. R. Civ. P. In determining whether there is a genuine issue of material fact as to each element of an affirmative defense, this Court must review the record in a light most favorable to the plaintiff (the nonmoving party) and must resolve all reasonable doubts against the defendant (the movant).” ’ ”

North Montgomery Materials, L.L.C. v. Federal Ins. Co., 843 So.2d 201, 204 (Ala.Civ.App.2002) (quoting Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 444-45 (Ala.1999), quoting in turn Bechtel v. Crown Cent. Petroleum Corp., 495 So.2d 1052,1053 (Ala.1986)).

As a preface to our analysis, we note that the AUFTA defines a “creditor” as a “person who has a claim”; a “debtor” as a “person who is liable on a claim”; and “transfer” as “[e]very mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance.” § 8-9A-l(4),(6), and (13), Ala. Code 1975. The AUFTA provides that “[a] transfer made by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made, if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor.” § 8-9A-4(a), Ala.Code 1975.

The AUFTA sets forth multiple remedies for creditors. The AUFTA provides:

“(a) In an action for relief against a transfer under this chapter, the remedies available to creditors, subject to the limitations in Section 8-9A-8, include:
“(1) Avoidance of the transfer to the extent necessary to satisfy the creditor’s claim;
“(2) An attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by any applicable provision of any other statute or the Alabama Rules of Civil Procedure;
“(3) Subject to applicable principles of equity and in accordance with applicable rules of civil procedure,
“a. An injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property;
“b. Appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or
“c. Any other relief the circumstances may require.
“(b) If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.”

§ 8-9A-7, Ala.Code 1975.

The AUFTA also provides several defenses to a transferee. Among other things, the AUFTA provides that a creditor may not void a transfer to a transferee who took in good faith and gave “a reasonably equivalent value” for the transfer. § 8-9A-8(a), Ala.Code 1975. Also, the AUFTA provides a transferee the right to have a lien placed on the transferred asset or a reduction in a judgment arising out of the transfer. § 8-9A-8 (d)(1) and (2), Ala. Code 1975.

In National Union Fire Insurance Co. of Pittsburgh, Pa. v. Grusky, 763 So.2d 1206 (Fla.Dist.Ct.App.2000), a federal bankruptcy court had discharged a debt- or’s debt and one of the debtor’s creditors sought, in a subsequent state-court action, to have a transfer from the debtor to a third party declared fraudulent. The state trial court entered a summary judgment in the third party’s favor and the creditor appealed; the state appellate court reversed the entry of the summary judgment in favor of the transferee. In concluding that the bankruptcy court’s discharge of the debt did not affect the creditor’s rights to pursue an action against the transferee, the appellate court noted:

“ ‘[T]he discharge provision of the Bankruptcy Code, 11 U.S.C. § 524, consistent with fundamental bankruptcy policy, provides the debtor with a fresh start free from the burdens of preexisting liabilities. Under § 524, the discharge only (i) extinguishes personal liability of the debtor; and (ii) prevents creditors whose claims arose pre-bank-ruptcy from any actions to impose personal liability on the debtor. 11 U.S.C. § 524 (1978). Section 524(e) expressly provides that the “discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.” § 524(e).
“ ‘Under § 16 of the Bankruptcy Act of 1898, Ch. 541, 30 Stat. 544, 550 (1898), the limitation of discharge provision restricted actions to those against co-debtors, guarantors, or other sureties. The language of § 524(e) of the 1978 Bankruptcy Code reveals a congressional intent to broaden the rights of creditors, by preserving their actions against third parties and their property, and to restrict the effect of a discharge solely to a release of the personal liability of the debtor.’ ”

National Union Fire Ins. Co. of Pittsburgh, Pa. v. Grusky, 763 So.2d at 1208-09 (quoting Dixon v. Bennett, 72 Md.App. 620, 637, 531 A.2d 1318, 1326 (1987)); see also Kathy B. Enters., Inc. v. United States, 779 F.2d 1413 (9th Cir.1986); Dwyer v. Meramec Venture Assocs., L.L.C., 75 S.W.3d 291 (Mo.Ct.App.2002); Real Estate Dev. Corp. of Florida v. Dawn Dev., Inc., 677 So.2d 366 (Fla.Dist.Ct.App.1996); and Casey Nat’l Bank v. Roan, 282 Ill.App.3d 55, 668 N.E.2d 608, 218 Ill Dec. 124 (1996).

Although the discharge of their debts may have given the Johnsons a “fresh start,” the bankruptcy court’s discharge of the debt owed to Roberson had no effect on Roberson’s rights with regard to the alleged fraudulent transfer to Fred. See National Union Fire Ins. Co. of Pittsburgh, Pa. v. Grusky, supra. Accordingly, we reverse the trial court’s entry of a summary judgment in favor of Fred and remand the cause for further proceedings consistent with this opinion.

The appellee’s motion for an award pursuant to Rule 38, Ala. R.App. P., is denied.

REVERSED AND REMANDED.

BRYAN, J., concurs.

PITTMAN, J., concurs specially, with writing, which CRAWLEY, P.J., joins.

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

PITTMAN, Judge,

concurring specially.

I agree that the summary judgment must be reversed, and I concur in the main opinion. To the extent that the trial court may have concluded that the bankruptcy court’s judgment of dismissal, which was based upon a failure to comply with a pretrial order, triggered the principle of collateral estoppel (as opposed to the doctrine of res judicata), I note that a necessary element of collateral estoppel is missing, ie., resolution of the validity of Roberson’s claim was not necessary in the earlier proceeding (see Martin v. Reed, 480 So.2d 1180,1182 (Ala.1985)).

CRAWLEY, P.J., joins.

MURDOCK, Judge,

concurring in the result.

As the main opinion notes, “[t]he only issue Fred raised in his motion for a summary judgment was that the trial court lacked subject-matter jurisdiction because, he alleged, the doctrine of ‘judicial estop-pel’ barred Roberson’s claims.” 950 So.2d at 319. Likewise, the appropriateness of a summary judgment based on an estoppel is the only issue that has been presented to this court on appeal. Because I agree that a summary judgment in Fred’s favor on that ground was not appropriate, I concur in the result reached by the main opinion.

      . 11 U.S.C. § 727(a)(2)(A) provides that a debtor will be granted a discharge in bankruptcy unless the debtor, among other things, makes a transfer with the intent to "hinder, delay, or defraud a creditor” within one year of filing for bankruptcy.

      . " 'fT]he doctrine of judicial estoppel "applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted.” ’ " Carver v. Foster, 928 So.2d 1017, 1027 (Ala.2005) (citations and quotations omitted.) Based on the arguments that Fred advanced to the trial court and to this court, we have little doubt that Fred was actually arguing that Roberson's action was barred by the doctrine of "collateral estoppel,” which is an affirmative defense barring a party from relitigating an issue determined against that party in an earlier action See, e.g., Ex parte Flexible Prods. Co. 915 So.2d 34, 45 (Ala.2005).


author: BRYAN, Judge. CRAWLEY, Presiding Judge, PITTMAN, Judge, MURDOCK, Judge,

text:
    Thomas E. WEBB, Jr. v. Carolyn P. WEBB.
    2040797.
    Court of Civil Appeals of Alabama.
    Aug. 11, 2006.

      Thomas Allen Deas, Mobile, for appellant.
    Grady R. Edmondson, Mobile, for appel-lee.
   BRYAN, Judge.

Thomas E. Webb, Jr. (“the husband”), appeals a divorce judgment entered by the Mobile Circuit Court. We affirm in part, reverse in part, and remand.

On October 6, 2004, Carolyn P. Webb (“the wife”) sued the husband for a divorce on the grounds of incompatibility, irretrievable breakdown of the marriage, and adultery. In her complaint, the wife requested, among other things, custody of the parties’ four minor children, child support, and alimony. The husband, answering on January 11, 2005, denied the allegation of adultery and counterclaimed for, among other things, a divorce on the grounds of incompatibility and irretrievable breakdown of the marriage.

On March 2, 2005, the trial court received evidence ore tenus. On March 7, 2005, the trial court entered a judgment granting the parties a divorce on the grounds of the husband’s adultery and the parties’ incompatibility. In addition, it awarded the wife primary physical custody of the parties’ four minor children and $1,891 in monthly child support. The judgment also awarded the husband visitation rights, but it restricted his right to exercise visitation to his home. It also awarded the wife, among other things, $750 in monthly periodic alimony and $8,000 of the husband’s retirement benefit. Additionally, it ordered the husband to pay, among other things, COBRA health insurance on the wife’s behalf for a period of two years. Furthermore, the judgment awarded the parties certain marital properties and allocated various marital debts.

The husband moved the trial court to alter, amend, or vacate its judgment on March 24, 2005. The trial court denied the husband’s postjudgment motion, and the husband timely appealed.

The following facts were undisputed. The husband and the wife married in September 1994. Four children were born of the marriage. The wife worked as a homemaker for the majority of the marriage. The husband works for GE Inspection Services and earned a gross income of $89,400 in 2004. The husband, who frequently travels for extended periods of time in connection with his job, had been working in Burlington, Washington, for a year before the parties’ separation.

On appeal, the husband argues that the trial court erred in divorcing the parties on the ground of adultery. The wife testified that the parties separated when she discovered, in September 2004, that the husband was having an adulterous affair. According to the wife, she inadvertently called the husband’s alleged paramour, who told her that she had been having an affair with the husband. The wife also testified that she spoke with the alleged paramour’s friend, who told her that the husband and the alleged paramour had been vacationing in Miami, Florida, and that the husband had been living with the alleged paramour while he was working in Washington. Afterwards, the wife confronted the husband regarding his alleged infidelity. When he was confronted, according to the wife’s testimony, the husband apologized for the affair. The wife then told the husband that she would forgive him under certain conditions. However, according to the wife, the husband stated that he no longer loved the wife and that their marriage was over. The husband then left the marital residence that same day.

In addition, the wife testified that Lloyd Hull, the husband’s friend, told her that the husband had committed adultery throughout the marriage and that the husband had been bringing his paramours to Hull’s home to have sexual relations. According to the -wife, when she confronted the husband with Hull’s allegations, the husband apologized for his conduct rather than denying that it had occurred.

Furthermore, the wife testified that she confronted the husband regarding affairs he had allegedly had with seven different people during the marriage. According to the wife, the husband never denied her allegations regarding those affairs. The wife also testified that, on another occasion, the husband had admitted that he had had numerous affairs throughout the marriage.

As circumstantial evidence of the husband’s alleged acts of adultery, the wife introduced evidence of charges ranging from $125 to $140 for meals and charges ranging from $30 to $40 for drinks the husband had incurred at various restaurants and bars during a trip to Miami. However, the husband testified that he had incurred those charges by purchasing meals for himself or by purchasing drinks for himself and a male friend.

When the wife’s counsel cross-examined the husband regarding whether he had committed adultery and whether he had been living with his alleged paramour, the husband responded by invoking the privilege against self-incrimination provided , by the Fifth Amendment to the United States Constitution. However, in other portions of the husband’s testimony, he denied having a girlfriend, denied going to Hull’s house to have sexual relations, denied vacationing with his alleged paramour in Miami, and denied having lived with his alleged paramour in Washington. Additionally, the husband testified that the last time he stayed in a hotel in Washington was in December 2004. He also stated that he did not incur credit-card charges for hotel expenses but instead paid those expenses in cash. Furthermore, when questioned about his relationship with one of his alleged paramours, the husband stated that they were only friends.

“ ‘While it is difficult and somewhat rare to prove adultery by direct means, the charge of adultery in a divorce case may be proven by circumstantial evidence which creates more than a mere suspicion.’ ” Fowler v. Fowler, 636 So.2d 433, 435 (Ala.Civ.App.1994) (quoting Billington v. Billington, 531 So.2d 924, 924 (Ala.Civ.App.1988)). Furthermore, “proof [of adultery] must be sufficient to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference. Hooker [v. Hooker, 593 So.2d 1023 (Ala.Civ.App.1991) ].” Langley v. Langley, 617 So.2d 678, 679 (Ala.Civ.App.1992) (emphasis added).

This court has also stated: “The testimony of one spouse as to the other spouse’s confession of adultery is, alone, insufficient to warrant a divorce on the grounds of adultery....” Yates v. Yates, 676 So.2d 365, 366 (Ala.Civ.App.1996); see also § 30-2-3, Ala.Code 1975. Additionally, our supreme court has stated: “It is clear under our decisions that confessions of a party in a divorce suit must be corroborated.” Watson v. Watson, 278 Ala. 425, 428, 178 So.2d 819, 821 (1965) (citing Lunsford v. Lunsford, 232 Ala. 368, 168 So. 188 (1936)). Furthermore, “ ‘the mere admission or confession of adultery on the part of the defendant, without any substantive evidence whatever of the delictum, is not sufficient or proper evidence to authorize a court to dissolve the marital bonds....’” Watson, 278 Ala. at 428, 178 So.2d at 821 (quoting Hall v. Hall, 93 Fla. 709, 112 So. 622 (1927)) (emphasis added).

Although a party’s invoking the privilege against self-incrimination in response to questions regarding adultery raises a presumption against that party, Langley, 617 So.2d at 680, this court has also stated:

“[T]he ‘presumption that operates against a party claiming the privilege’ is not ‘sufficient proof to lead the guarded discretion of a reasonable and just mind to the conclusion that the act of adultery was committed as a necessary inference. In other words, a presumption against a party is not sufficient competent and legal evidence that the party has committed adultery.”

Langley, 617 So.2d at 680; see also Mosley v. Mosley, 747 So.2d 894, 899 (Ala.Civ.App.1999).

We conclude that the evidence of the husband’s alleged adultery introduced by the wife in the case now before us was insufficient to support the trial court’s divorcing the parties’ on the ground of the husband’s alleged adultery. First, the wife’s testimony that the husband admitted committing adultery was insufficient without corroboration by “substantive evidence.” Watson, 278 Ala. at 428, 178 So.2d at 821. Second, none of the wife’s other evidence of the husband’s alleged adultery constituted “substantive evidence” of adultery. Id.

The wife’s testimony that the husband’s alleged paramour confessed to adultery and that Hull stated that the husband had committed adultery were not sufficient. See Hubbard v. Hubbard, 55 Ala.App. 521, 317 So.2d 489 (Civ.1975) (holding that the testimony of the paramour’s spouse regarding the paramour’s confession of adultery with the husband was insufficient to corroborate the wife’s testimony regarding the husband’s extrajudicial confessions of adultery). The evidence that the husband had incurred charges ranging from $125 to $140 for meals and charges ranging from $30 to $40 for drinks was not sufficient. While the husband’s incurring such charges could possibly indicate that the husband was entertaining a paramour, it does not necessarily lead to that inference — the husband could have incurred the charges eating and drinking by himself or by entertaining one or more male guests. Consequently, it is not substantive evidence of adultery. See Langley, 617 So.2d at 679 (“[Pjroof [of adultery] must be sufficient to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.” (emphasis added)). Similarly, the nonexistence of hotel bills is insufficient because it does not “lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.” Id. (emphasis added). Finally, the husband’s invoking the privilege against self-incrimination is not sufficient. See Langley, supra; cf. Anonymous v. Anonymous, 353 So.2d 510 (Ala.Civ.App.1977), rev’d on other grounds, 353 So.2d 515 (Ala.1977) (holding that other evidence, standing alone, was sufficient to support a finding of adultery when the allegedly adulterous wife and her alleged paramour invoked the privilege against self-incrimination).

In his special writing, Judge Pittman suggests that the supreme court, by stating in King v. King, 28 Ala. 315, 319 (1856), that a court cannot grant a divorce on the ground of adultery when extrajudicial admissions of adultery constitute the only evidence of adultery, implied that any additional evidence of adultery will suffice to corroborate the extrajudicial admissions. However, that is not the case; the extrajudicial admissions must be corroborated by “substantive evidence” of adultery, i.e., evidence that would “lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.” Langley, 617 So.2d at 679 (emphasis added).

Therefore, the trial court erred in granting a divorce on the ground of adultery. Consequently, we must reverse the judgment insofar as it granted a divorce on the ground of adultery.

The husband also argues that the trial court erred in awarding the wife $750 in monthly periodic alimony. He argues that the judgment should be reversed because, he says, the trial court erred in fashioning its periodic-alimony award by considering adultery as a ground for the divorce. He also argues, without citing any authority, that the trial court’s judgment ordering him to pay the wife $1,891 in monthly child support, the indebtedness on the wife’s 2004 Ford Explorer, the wife’s COBRA health insurance, and $750 in monthly periodic alimony, in essence, financially “cripples” him.

Based on our review of the evidence, we conclude that the trial court did not abuse its discretion in awarding the wife $750 in periodic alimony, regardless of whether it considered adultery as a ground for the divorce. See Ragan v. Ragan, 655 So.2d 1016,1018-19 (Ala.Civ.App.1995) (reversing the judgment divorcing the parties on the ground of adultery and affirming the trial court’s award of alimony and allocation of marital property). Additionally, we conclude that the trial court did not abuse its discretion in ordering the husband to pay for COBRA health insurance on the wife’s behalf and allocating various marital debts. Furthermore, we conclude that the trial court did not err in awarding the wife $1,891 in monthly child support, which was in compliance with the Child Support Guidelines set forth in Rule 32, Ala. R. Jud. Admin.

The husband also argues, and the wife concedes, that the trial court erred in awarding the wife $8,000 of the husband’s $15,000 retirement benefit. Section 30-2-51(b)(3), Ala.Code 1975, states that a trial court has discretion to award a noncovered spouse no more than 50 percent of a covered spouse’s retirement benefit. Because the trial court’s judgment awarding the wife $8,000 exceeds 50 percent of the husband’s $15,000 retirement benefit, we must reverse the judgment insofar as it awarded the wife more than 50 percent of the husband’s retirement benefit.

Last, the husband argues that the trial court erred in restricting his visitation with the children to his home. Regarding visitation, this court has previously stated:

“We recognize that the determination of visitation rights for the noncustodial parent rests within the discretion of the trial court, and we will not reverse a judgment determining visitation except for an abuse of that discretion. Ladewig v. Moxley, 589 So.2d 738 (Ala.Civ.App.1991). In exercising its discretion in awarding visitation rights, the trial court’s primary consideration must be the best interests and welfare of the children, and each case must be decided on its own facts. Durham v. Heck, 479 So.2d 1292 (Ala.Civ.App.1985).”

Mann v. Mann, 725 So.2d 989, 992 (Ala.Civ.App.1998).

At trial, the wife testified that the husband had a problem with excessive alcohol consumption. The wife testified that she had discovered that problem when she learned that he had been arrested in April 2004 for driving under the influence of alcohol in Washington. The husband, however, denied that he has a problem with excessive alcohol consumption. Furthermore, he testified that he pleaded guilty to a charge of negligent driving. The husband did admit that the arresting police officer stated that he smelled alcohol on the husband and that the husband’s speech was slurred. However, the husband had never been previously arrested for driving under the influence. Additionally, the husband testified that he has a valid Alabama driver’s license. The wife, on the other hand, testified that the husband did not possess a valid driver’s license and that his driver’s license had been revoked. She also testified that she is concerned about the possibility of the husband’s driving under the influence of alcohol while the children are in his care.

This court has stated: “In ore. tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief. Brown v. Brown, 586 So.2d 919 (Ala.Civ.App.1991).” Clemons v. Clemons, 627 So.2d 431, 434 (Ala.Civ.App.1993). Based on the wife’s testimony, the trial court could have concluded that the husband had a problem with consuming excessive amounts of alcohol and that his excessive consumption of alcohol could place the children at risk while they were in his care. Therefore, the trial court could have concluded that it was in the best interest of the children to restrict the husband’s visitation to his home. Consequently, the trial court did not abuse its discretion by imposing that restriction.

We reverse the judgment insofar as it granted the divorce on the ground of adultery and awarded the wife more than 50 percent of the husband’s retirement benefit. In all other respects, we affirm the judgment. We remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

CRAWLEY, P.J., concurs specially, with writing, in which THOMPSON, J., concurs.

PITTMAN, J., concurs in part and dissents in part, with writing, in which MURDOCK, J., concurs.

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

CRAWLEY, Presiding Judge,

concurring specially.

I write to express my concerns regarding the source of the high scrutiny given to the testimony of one spouse as to admissions of adultery from the other spouse and to explain why I do not join either dissent in this case.

In Alabama, our present caselaw appears to derive from a section of the Code, § 30-2-3, Ala.Code 1975, that has remained the same since well before the advent in 1971 of our modern “no-fault” grounds for divorce. Today, § 30-2-3, Ala.Code 1975, provides:

“No judgment can be entered on the confession of the parties, or either of them, or if it appear that adultery was committed by either, with the consent of the other, for the purpose of obtaining a divorce, or where both parties have committed adultery, or where there has been a condonation of adultery by the admission of the offending party to conjugal embraces after knowledge of the commission of the crime, or when the husband knew of or connived at the adultery of the wife.”

(Emphasis added.) The annotations to this section indicate that it was previously codified as: “Code 1852, § 1966; Code 1867, § 2356; Code 1876, § 2690; Code 1886, § 2327; Code 1896, § 1491; Code 1907, § 3799; Code 1923, § 7413; Code 1940, T. 34, § 26.” Cases that apply this section or its precursors, and upon which our current jurisprudence appears to be based, date at least as far back as King v. King, 28 Ala. 315 (1856). See also Russell v. Russell, 270 Ala. 662, 120 So.2d 733 (1960).

Thus it is apparent that our present caselaw is built upon a statute and policy-intended to prevent divorces on grounds that have, in modern times, become accepted in law and commonplace in practice. As noted in 49 Am.Jur. Proof of Facts 3d Adultery § 14 (1998):

“Traditionally, the preservation of the marital union was necessary to protect the decency and purity of society, and for this reason, a husband and wife could not cast it off by mutual consent, as parties to an ordinary contract may annul its obligations. Therefore, to prevent collusion, admissions of adultery by the parties were required to be corroborated by other evidence. As the grounds for divorce have became more relaxed, the need for corroboration has diminished proportionally. Divorces are now permitted by voluntary agreement and the suspicion of collusion is not nearly as likely as when divorces were available only for some specified aberrant conduct.”

(Footnotes omitted.)

Because divorce law has evolved to the point that it has eclipsed some of the policy considerations behind § 30-2-3, I think that in some circumstances one spouse’s testimony as to the other spouse’s confessions of adultery should be sufficient evidence on which a trial court could grant a divorce on the ground of adultery. Therefore, I suggest that the time may be ripe for a reexamination of this statute and our caselaw relying upon it.

However, I point out that I do not join either dissent in this case primarily because of my reluctance to infer as much as the dissenters do from the husband’s invocation of his Fifth Amendment right against self-incrimination. In Alabama, adultery is still a crime. See § 13A-13-2(c), Ala.Code 1975 (adultery is a Class B misdemeanor). The protection afforded the husband against self-incrimination by the Fifth Amendment is significant. There is a danger in inferring too much, even in the civil context, from a witness’s invocation of this right. This concern is reflected in this court’s holding in Langley v. Langley, 617 So.2d 678 (Ala.Civ.App.1992). Langley, in reversing the trial court’s judgment, held that even when a husband, and two of his alleged paramours, invoked the privilege against self-incrimination, the resulting adverse presumption against the husband was not sufficient to grant a divorce on the ground of adultery. Id.

I simply do not think that the adverse presumption arising from the husband’s invocation of his Fifth Amendment right against self-incrimination, even when coupled with the other factors in this ease, should be considered evidence “sufficiently strong to lead the -guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.” Boldon v. Boldon, 354 So.2d 275, 276 (Ala.Civ.App.l978)(emphasis added).

THOMPSON, J., concurs.

PITTMAN, Judge,

concurring in part and dissenting in part.

I concur in the main opinion in all respects except one: although the evidence does support a finding of incompatibility, I do not believe that the court’s finding of adultery in its divorce judgment is incorrect. The wife’s testimony that she had received telephone calls from two of the husband’s alleged paramours during the last three months before the parties’ separation was corroborated, at least in part, by the husband’s assertion of his Fifth Amendment right not to testify when questioned by the wife’s attorney about his alleged extramarital affairs. Although the main opinion correctly notes that neither the husband’s extrajudicial admissions or the husband’s invocation of the Fifth Amendment alone would support a divorce judgment on the basis of adultery, no case is cited to the effect that the two together do not amount to substantive evidence supporting such a judgment.

In addition, the wife’s attorney asked the husband about a series of credit-card receipts detailing expenses that had been incurred during time periods when, the husband testified, he was alone. Several of those receipts were for $30 to $40 at bars and for $125 and $140 for individual meals. The husband refused to answer questions seeking more details, again asserting his Fifth Amendment rights. Additionally, the wife’s lawyer inquired about the nonexistence of hotel or motel bills during the last year before trial when the husband was supposed to be working out of state for his employer. The husband’s failure to answer those questions lent additional support to a permissible inference, ie., that the husband was cohabiting with someone other than his wife.

As noted in King v. King, 28 Ala. 315 (1856), one of the first cases to consider the legislative prohibition of collusive divorce judgments:

“The Code makes [extrajudicial confessions of adultery] insufficient, but does not absolutely exclude them. It makes them admissible, but forbids the rendition of a decree for divorce, when they constitute the only evidence of the alleged cause for divorce. It does not, however, forbid the rendition of such decree when they do not constitute the only evidence, but are proved in conjunction with other circumstances and conduct, which confirm or tend to confirm them, and repel the idea of collusion between the parties. A decree for divorce, rendered on confessions, and conduct, and circumstances, is not a decree ‘rendered on the confession of the parties’, within the meaning of the Code.”

King, 28 Ala. at 319 (emphasis added); see also Russell v. Russell, 270 Ala. 662, 120 So.2d 733 (1960). Although the special concurrence, like the main opinion, acknowledges that settled statutes and decisions require corroboration in order for a party to be determined in a divorce judgment to have committed adultery, I believe the evidence and logical inferences that may be drawn from the evidence in this case support the trial court’s conclusion that the husband had committed adultery. Additionally, I must defer to the trial court’s findings of fact pursuant to the ore tenus standard. See, e.g., Percey v. Percey, 617 So.2d 682 (Ala.Civ.App.1992) (findings of the trial court are presumed factually correct and can be altered on appeal only if they are palpably wrong). Therefore, I respectfully dissent from the reversal of the trial court’s judgment of divorce on the ground of adultery.

MURDOCK, J., concurs.

MURDOCK, Judge,

concurring in part and dissenting in part.

Like Judge Pittman, I concur in the main opinion in all respects except for the main opinion’s conclusion that the record in this case is not sufficient to support a finding of adultery. I join Judge Pittman’s writing and write separately to further explain certain concerns I have with respect to the main opinion’s treatment of the evidence in this case.

Although it may be true that the presumption that operates against a party claiming the privilege against self-incrimination is not sufficient evidence, by itself, to prove adultery, portions of the testimony and other evidence that do appear in the record in this case, considered in conjunction with the aforesaid presumption, and in light of the deference owed to the trial court’s factual findings based on evidence received ore tenus, provide sufficient support in my opinion for the trial court’s judgment. More specifically, I believe the main opinion errs (a) in analyzing each portion of the testimony and circumstantial evidence in this case to determine if that particular evidence, by itself, is “sufficient to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference,” and (b) in characterizing isolated portions of the evidence as not being “substantive evidence” because each of them, standing alone, does not satisfy that evidentiary standard. It is only necessary that the standard of proof for a finding of adultery be satisfied by all of the evidence and applicable presumptions taken as a whole.

I further note that Ala.Code 1975, § 30-2-3, was designed by the legislature, before the advent of divorces based merely on the grounds of incompatibility or “irreconcilable differences,” to prevent collusion by the parties in an effort to obtain a divorce. It therefore may be time, as Presiding Judge Crawley suggests, to reexamine judicial holdings as to the limitations imposed by § 30-2-3 on certain testimony. In any event, I see no limitation in § 30-2-3 on the probative value of testimony by a spouse as to the extra-judicial statements of third parties, such as, in this case, an alleged paramour of the husband, a friend of the husband’s alleged paramour, and Lloyd Hull, a friend of the husband.

      . See Penny A. Davis & Robert L. McCurley, Jr., Alabama Divorce, Alimony & Child Custody Hornbook, § 7-2 (4th ed. 2005)("In 1971 the Alabama Legislature added two new grounds for divorce, 'incompatibility' and 'irretrievable breakdown of the marriage.’ ” (footnotes omitted)).

      . See § 30-2-1 (a)(7) and (9), Ala.Code 1975 (providing as grounds for divorce incompatibility of temperament and irretrievable breakdown of the marriage, respectively).


author: PITTMAN, Judge.

text:
    Rhonda Steadman HOOD v. Rodney Jawan WILSON.
    2050325.
    Court of Civil Appeals of Alabama.
    Aug. 11, 2006.

      Chuck Hunter, Birmingham, for appellant.
    Kori L. Clement of Hare, Clement & Duck, P.C., Birmingham, for appellee.
   PITTMAN, Judge.

In May 2004, Rhonda Steadman Hood sued Rodney Jawan Wilson and various fictitiously named defendants in the Jefferson Circuit Court. In her one-count complaint, Hood alleged that Wilson had, as a result of negligence “and/or” wantonness, allowed his automobile to collide with Hood’s motor vehicle so as to violently shake and toss her, as well as cause property damage to her vehicle, loss of part of the vehicle’s value, loss of use of her vehicle, and emotional distress; she sought an unspecified amount of damages from Wilson. After Wilson had answered the complaint, Hood filed a motion for a partial summary judgment as to whether she had suffered compensable personal injuries and a loss in her motor vehicle’s value; in support of that motion, she filed, among other things, her own affidavit in which she testified that her head had been forced forward by the impact of the collision of the two automobiles and that she had suffered lower-back pain, right-leg numbness, and a neck-muscle strain in addition to having been “frightened” by the impact. Wilson responded to that motion and also filed a motion for a partial summary judgment, alleging that Hood had not suffered any bodily injury and that Wilson was not guilty of wanton conduct. Hood voluntarily withdrew her allegation of wantonness as a component of her response to Wilson’s partial-summary-judgment motion, but opposed the motion insofar as it challenged her having suffered personal injuries.

On July 6, 2005, after a hearing, the trial court entered an order that, in pertinent part, denied Hood’s motion and granted Wilson’s motion. In response to the trial court’s order, Hood filed a motion requesting that the trial court set aside that order denying an award of damages as to her claimed personal injuries or, in the alternative, that that court direct, pursuant to Rule 54(b), Ala. R. Civ. P., the entry of a final judgment as to her right to recover damages for her claimed personal injuries. On December 29, 2005, the trial court entered an order denying Hood’s motion, but stating that its order of July 6, 2005, “which granted partial summary judgment in favor of [Wilson] and against [Hood] on [Hood’s] claim of negligence as to personal injuries[J should be and is hereby made final pursuant to [R]ule 54(b).” Hood filed a notice of appeal on January 13, 2006; the Alabama Supreme Court transferred her appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Although Hood contends on appeal that the trial court erred in determining that she could not recover personal-injury damages, we agree with Wilson that this court does not have jurisdiction to reach the merits of Hood’s appeal notwithstanding the trial court’s invocation of Rule 54(b), Ala. R. Civ. P., in an effort to confer finality upon its July 6, 2005, order. Although Rule 54(b) authorizes a trial court to direct the entry of a final judgment as to one or more but fewer than all of the claims or parties,” Rule 54(b) applies “only where the trial court ‘has completely disposed of one of a number of claims, or one of multiple parties.” Tanner v. Alabama Power Co., 617 So.2d 656, 656 (Ala.1993) (quoting Rule 54, Ala. R. Civ. P., Committee Comments on 1973 Adoption and adding emphasis). Specifically, Rule 54(b) does not allow the direction of a final judgment as to only one aspect of damages arising from a single claim. See Waiters v. Autry Greer & Sons, Inc., 784 So.2d 1068, 1070 (Ala.Civ.App.2000) (dismissing appeal from partial-summary-judgment order entered in premises-liability action addressing only compensability of injury to plaintiffs head, noting that when a plaintiff “ ‘is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented’ ” and Rule 54(b) does not apply)-

Here, the trial court has adjudicated only Hood’s right to recover one class of damages (i.e., personal-injury damages) allegedly flowing from the collision that, Hood says, resulted from Wilson’s negligent acts or omissions. In doing so, however, the trial court has retained jurisdiction to determine whether Hood should recover other damages she has claimed with respect to her motor vehicle allegedly arising from that same claimed negligence, including direct repair costs, consequential loss of value, and loss-of-use damages. As the Supreme Court noted in Ex parte Simmons, 791 So.2d 371, 381 (Ala.2000), in vacating this court’s affirmance of a trial-court order barring recovery of extracon-tractual damages in a particular civil action, “Rule 54(b) applies only to entire claims, not to orders relating to the recov-erability of some, but not all, of the damages a party may be seeking as the result of a claim.” Just as one may not properly speak of a “punitive damages claim,” see Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999), no separate “bodily injury claim” may properly be said to exist in this case.

As in Waiters, “[w]e conclude that the trial court’s ... certification of the partial summary judgment was not effective because the partial summary judgment in this case did not completely dispose of a particular claim”; thus, “this appeal must be dismissed as being from a nonfinal judgment.” 784 So.2d at 1070. We would emphasize, however, that in dismissing the appeal, we express no opinion concerning the correctness of the trial court’s July 6, 2005, order as a matter of substantive law.

APPEAL DISMISSED.

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

      . Simmons suggests that the proper method of seeking review of interlocutory orders concerning the recoverability of elements of damages as to a single claim is via a petition to the Alabama Supreme Court for a discretionary permissive appeal pursuant to Rule 5, Ala. R.App. P. 791 So.2d at 381.


author: CRAWLEY, Presiding Judge.

text:
    Sunitha MADASU v. The BERRY COMPANY and BellSouth Advertising and Publishing Company.
    2050350.
    Court of Civil Appeals of Alabama.
    Aug. 11, 2006.

      J. Wilson Mitchell of Mitchell, Bernauer, Winborn, Austin & Miles, Florence, for appellant.
    Maxwell H. Pulliam and Jonathan W. Macklem of Christian Small, LLP, Birmingham, for appellees.
   CRAWLEY, Presiding Judge.

Sunitha Madasu is a dentist practicing in Lauderdale County. Dr. Madasu practices as an associate of another dentist, Dr. Ken Swindle. In March 2001, Dr. Swindle contracted with The Berry Company and Bell-South Advertising and Publishing Company (The Berry Company and BellSouth Advertising are hereinafter referred to collectively as “BAPCO”) to advertise his dental practice in the yellow pages of the telephone directory published by BAPCO. The contract between Dr. Swindle and BAPCO contained the following outbound forum-selection clause: “Any litigation arising hereunder shall be filed in either the Federal District Court for the Northern District of Georgia or the Superior Court of DeKalb County, Georgia, and you agree to consent to the jurisdiction of such courts.”

When BAPCO published its 2002 and 2003 telephone directories, Dr. Madasu was incorrectly listed as a dentist specializing in pediatric dentistry. Another telephone-directory publisher used the information contained in the BAPCO directory to publish its directory; thus, Dr. Madasu was improperly listed as a pediatric dentist in the second publication, ‘Yellow Book USA”, as well. Dr. Madasu was disciplined by the Alabama State Board of Dental Examiners for advertising herself in the Yellow Book as a specialist when she was not qualified as a specialist. Ma-dasu v. State Bd. of Dental Exam’rs., [Ms. 2030034, July 22, 2005] — So.2d - (Ala.Civ.App.2005). We reversed the trial court’s affirmance of the Board’s decision disciplining Dr. Madasu because the Board did not prove that Dr. Madasu had authorized her advertisement as a pediatric specialist. Madasu, — So.2d at-.

Dr. Madasu then sued BAPCO, alleging that it was negligent and/or wanton in its publishing the advertisement listing her as a specialist and alleging that BAPCO had breached its contract with Dr. Swindle, under which contract she claimed third-party-beneficiary status. BAPCO filed a motion to dismiss raising several defenses, including a challenge to the venue of the action based on the outbound forum-selection clause in the contract between it and Dr. Swindle. The trial court originally denied BAPCO’s motion. However, BAPCO moved the trial court to reconsider the motion only on the outbound-forum-selection-clause defense. Dr. Madasu responded, arguing that she was not a party to the contract containing the outbound forum-selection clause and that enforcement of the clause would be unreasonable because to file suit in Georgia would be seriously inconvenient to her for various reasons; Dr. Madasu attached to her response, among other things, her own affidavit, in which she outlined why litigating the action in Georgia would be seriously inconvenient. The trial court granted BAPCO’s motion and dismissed Dr. Mada-su’s action without prejudice pursuant to Rule 12(b)(3), Ala. R. Civ. P., on the ground that venue was improper under the outbound forum-selection clause. Dr. Ma-dasu appealed to the Alabama Supreme Court, which transferred the case to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

“[A]n attempt to seek enforcement of the outbound forum-selection clause is properly presented in a motion to dismiss without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P., for contractually improper venue. Additionally, we note that a party may submit evidentiary matters to support a motion to dismiss that attacks venue. ' Williams v. Skysite Communications Corp., 781 So.2d 241 (Ala.Civ.App.2000), quoting Crowe v. City of Athens, 733 So.2d 447, 449 (Ala.Civ.App.1999).”

Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala.2001). We review a trial court’s ruling on a Rule 12(b)(3) motion regarding the enforcement of an outbound forum-selection clause for an abuse of discretion. Ex parte D.M. White Constr. Co., 806 So.2d at 372.

Dr. Madasu argues that she should not be bound by the outbound forum-selection clause in the contract between BAPCO and Dr. Swindle because she was not a party to the contract. Our supreme court has never specifically decided whether a nonsignatory to a contract containing an outbound forum-selection clause is bound by that clause. However, our supreme court has allowed nonsignatories to a contract to enforce an outbound forum-selection clause. Ex parte Procom Servs., Inc., 884 So.2d 827, 834 (Ala.2003).

In determining that nonsignatories could enforce an outbound forum-selection clause, the court discussed federal cases that held that forum-selection clauses bind nonsignatories that are closely related to the dispute or who participated in the transaction forming the basis of the claim being litigated. Ex parte Procom Servs., 884 So.2d at 834 (citing, among other cases, Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 209-10 (7th Cir.1993), and Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 514 n. 5 (9th Cir.1988)). The court, however, did not rest its decision on what it termed persuasive but not binding authority. Ex parte Procom Servs., 884 So.2d at 834. Instead, the court turned to its analysis of the enforceability of arbitration provisions by nonsignatories, resting its decision that nonsignatories may enforce an outbound forum-selection clause on a determination that the claims made by the plaintiff were “intertwined with” and “related to” both the contract and statements made by the defendants while negotiating that contract. Id.

Dr. Madasu also bases her argument on cases involving the enforcement of arbitration provisions by nonsignatories. Dr. Madasu contends that the language of the forum-selection clause prevents its application to her because arbitration provisions that are narrowly worded so as to exclude their application to the nonsignato-ry are not enforceable by that nonsignato-ry. See, e.g., Jim Burke Auto., Inc. v. McGrue, 826 So.2d 122, 131 (Ala.2002). Dr. Madasu’s argument, however, is premised on an exception to an exception to the rule that nonsignatories may not enforce arbitration provisions. -

“A party typically manifests its assent to arbitrate a dispute by signing the contract containing the arbitration provision. Ex parte Stamey, 776 So.2d 85, 88-89 (Ala.2000). One of the key exceptions to this rule is the theory of equitable estoppel, under which a nonsignatory can enforce an arbitration provision when the claims against the nonsignato-ry are ‘ “ ‘intimately founded in and intertwined with”” the underlying contract obligations. Stamey, 776 So.2d at 89 (quoting Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993), quoting in turn McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984)).
“This Court has crafted one exception to that exception: unless the arbitration provision contains sufficiently broad language that indicates that the nonsignato-ry was contemplated as a party, we have repeatedly held that the nonsignatory lacks ‘standing’ to enforce the arbitration agreement. Med Ctr. Cars, Inc. v. Smith, 727 So.2d 9, 19 (Ala.1998); Ex parte Isbell, 708 So.2d 571, 581 (Ala.1997); Ex parte Jones, 686 So.2d 1166, 1168 (Ala.1996); and Ex parte Jones, 628 So.2d 316, 317 (Ala.1993). Where ‘the language of the arbitration provisions limited arbitration to the signing parties,’ this Court has not allowed the claims against the nonsignatories to be arbitrated. Stamey, 776 So.2d at 89.”

Smith v. Mark Dodge, Inc., 934 So.2d 375, 380-81 (Ala.2006).

There is second exception to the general rule that arbitration provisions cannot be enforced by nonsignatories; that exception “arises from a third-party-beneficiary theory that affords the third party all the rights and benefits, as well as the burdens, of th[e] contract, including those associated with arbitration.” Ex parte Stamey, 776 So.2d 85, 89 (Ala.2000); see also Georgia Power Co. v. Partin, 727 So.2d 2, 5 (Ala.1998) (“Jerry Partin brought his breach-of-contract claim as a third-party beneficiary of the [contract], and, thus, has chosen to accept and enforce all of its terms, including the arbitration clause that he seeks to avoid.”). Thus, Dr. Madasu, who claims to be a third-party beneficiary of the contract between BAPCO and Dr. Swindle, would be bound by any arbitration provision in that, contract irrespective of the language of the provision. In light of our supreme court’s decision in Ex parte Procom Services, in which it analogized cases involving nonsignatory enforcement of arbitration provisions to the enforcement of an outbound forum-selection clause, we conclude, based on Ex parte Stamey and Partin, that Dr. Madasu is likewise bound by the outbound forum-selection clause in the contract between BÁPCO and Dr. Swindle because, as a third-party beneficiary seeking to recover for breach of the contract, she must accept all the terms in the contract, including the outbound forum-selection clause.

Now that we have determined that Dr. Madasu is bound by the outbound forum-selection clause by virtue of her reliance on third-party-beneficiary status, we must turn to Dr. Madasu’s argument against enforcing the clause.

“Alabama has adopted the majority rule that an outbound forum-selection clause should be enforced so long as enforcement is neither unfair nor unreasonable under the circumstances of the case. Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 351 (Ala.1997). The party challenging the enforcement of such a clause has the burden of clearly establishing either
“ ‘(1) that enforcement of the forum-selection clause[] would be unfair on the basis that the contract[ ] ... [was] affected by fraud, undue influence, or overweening bargaining power or (2) that enforcement would be unreasonable on the basis that the chosen ... forum would be seriously inconvenient for the trial of the action.’
“Sutherland, 700 So.2d at 352. See also Ex parte CTB, Inc., 782 So.2d [188,] 190-91 [ (Ala.2000) ]; and Ex parte Northern Capital Res. Corp., 751 So.2d 12, 14 (Ala.1999).”

Ex parte Rymer, 860 So.2d 339, 341 (Ala. 2003).

Dr. Madasu does not allege that the contract between BAPCO and Dr. Swindle was “affected by fraud, undue influence, or overweening bargaining power.” Instead, she argues that enforcement of the outbound forum-selection clause in this case would be “unreasonable on the basis that the chosen ... forum would seriously inconvenient for the trial of the action.” She supports her argument by stating that she would be inconvenienced by having to hire an attorney licensed to practice in Georgia and that she would have to require her witnesses to travel to Georgia for trial.

“When an agreement includes a clearly stated forum-selection clause, a party claiming that clause is unreasonable and therefore invalid will be required to make a clear showing of unreasonableness. In determining whether such a clause is unreasonable, a court should consider these five factors: (1) Are the parties business entities or businesspersons? (2) What is the subject matter of the contract? (3) Does the chosen forum have any inherent advantages? (4) Should the parties have been able to understand the agreement as it was written? (5) Have extraordinary facts arisen since the agreement was entered that would make the chosen forum seriously inconvenient? We state these items not as requirements, but merely as factors that, considered together, should in a particular case give a clear indication whether the chosen forum is reasonable.”

Ex parte Northern Capital Res. Corp., 751 So.2d 12, 14 (Ala.1999).

Nothing in our analysis of the factors set out in Ex parte Northern Capital Resource Corp. leads us to a conclusion that the chosen forum is “' “so gravely difficult and inconvenient that [Dr. Madasu] will for all practical purposes be deprived of [her] day in court.” ’ ” Ex parte Northern Capital Res. Corp., 751 So.2d at 15 (quoting Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 353-54 (Ala.1997) (Maddox, J., concurring in the result) (quoting in turn M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972))). The first three factors clearly weigh in favor of enforcing the outbound forum-selection clause. Dr. Madasu, Dr. Swindle, and BAPCO are businesspersons or entities, the contract is a relatively simple one involving advertising in the telephone directory, and the chosen forum is where BAPCO does business and maintains its records of the contract and the materials involved in the execution of the contract, which makes the forum advantageous in that much of the documentation concerning the contract and its execution is located in the chosen forum.

Dr. Madasu’s status as a third-party beneficiary makes the application of the fourth factor slightly different than it would be in a ease involving a party to the contract; however, because she steps into the shoes of Dr. Swindle, we believe the question remains the same: whether the parties to the contract could understand the agreement as written. We conclude that the language of the outbound forum-selection clause is direct and understandable and that Dr. Swindle and BAPCO understood the agreement.

Dr. Madasu has not presented any “extraordinary facts” making the chosen forum seriously inconvenient since the execution of the contract. The only argument that Dr. Madasu makes is that the forum would be inconvenient because she and her witnesses would have to travel to Georgia. “[Distance of travel does not establish that a forum is unreasonable.” Ex parte D.M. White Constr. Co., 806 So.2d at 373.

Dr. Madasu further argues that the dismissal of her negligence and/or wantonness claim should be reversed because the complaint was not filed outside the statute of limitations. Although BAPCO raised the statute of limitations as a defense in its original motion to dismiss, which the trial court denied, BAPCO sought reconsideration of the trial court’s denial of its motion to dismiss only as to the outbound-forum-selection-clause defense. The trial court’s order of dismissal refers only to the outbound forum-selection clause as a basis for the dismissal. Therefore, we will not consider Dr. Madasu’s argument on the statute-of-limitations issue. See Martin v. Martin, 656 So.2d 846, 848 (Ala.Civ.App.1995) (citing Bevill v. Owen, 364 So.2d 1201 (Ala.l979))(“Only rulings of the trial court can be reviewed by an appellate court.”).

Our supreme court has stated that the burden on a party seeking to avoid the enforcement of an outbound forum-selection clause is difficult to meet. Ex parte D.M. White Constr. Co., 806 So.2d at 372; and Ex parte C.T.B., Inc., 782 So.2d 188, 191 (Ala.2000). Dr. Madasu has failed to meet that burden. Accordingly, we affirm the trial court’s dismissal without prejudice of Dr. Madasu’s complaint against BAPCO.

The appellee s motion to strike is denied.

AFFIRMED.

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

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


author: CRAWLEY, Presiding Judge. MURDOCK, Judge,

text:
    Spring Beck Fotheringham RICHARDSON v. Mathew Jason FOTHERINGHAM.
    2050082.
    Court of Civil Appeals of Alabama.
    Aug. 11, 2006.

      Mary Lee Abele, Birmingham, for appellant.
    James Kendrick, Birmingham; and Angelina Richardson, Birmingham, for ap-pellee.
   CRAWLEY, Presiding Judge.

This is an appeal from a judgment denying the relief requested in a complaint to modify custody. Spring Beck Fothering-ham Richardson (“the mother”) and Mathew Jason Fotheringham (“the father”) were married and had two children together. On January 13, 2004, the father sued the mother for a divorce. The mother subsequently moved to Utah. The trial court granted the divorce on June 17, 2004, and it incorporated into its judgment an agreement of the parties. The terms of the agreement awarded the parties “joint custody” of the children and awarded the father “primary physical custody.” The mother married a first lieutenant in the United States Army shortly thereafter. The mother then moved back to Alabama, and on August 25, 2004, the mother filed a complaint to modify the judgment of divorce. In December 2004, the trial court granted the mother’s modification request and incorporated portions of another agreement of the parties into its order of modification that awarded the mother and the father “joint custody” of the children. The Army then stationed the mother’s current husband in Hawaii. On March 29, 2005, the mother again sought a modification of the judgment of divorce. The mother requested that she be awarded primary physical custody of the children and that she be allowed to relocate to Hawaii with the other children. After an ore tenus proceeding on July 19, 2005, the trial court denied the mother’s request, stating that she had failed to meet the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and ordering that “the care, custody and control of the minor children of the parties ... shall remain in compliance with the Final Judgment of Divorce dated June 17, 2004 and the modification dated December 6, 2004 with the [father] being primary custodian” (emphasis added). The mother filed a timely appeal to this court.

On appeal, the mother contends that the trial court erred by applying the standard set out in Ex parte McLendon, supra, to her March 29, 2005, complaint to modify custody because, she says, she and the father had joint custody of the children. However, the father contends that the trial court did not err in applying the McLen-don standard, because, he says, he still had primary physical custody of the children. He contends that, although the December 2004 order incorporated portions of a modification agreement that stated that the mother and the father had joint custody of the children, the eighth provision in that agreement declared that all other provisions of the divorce judgment, including the portion of the divorce judgment that awarded him primary physical custody, remained unchanged and in full force and effect.

The divorce judgment and the modification order incorporated agreements of the parties that addressed the issues of custody and visitation. The agreement incorporated into the divorce judgment provided, in pertinent part:

“II. CUSTODY AND VISITATION RIGHTS
“The care, custody of the minor children of the parties, ... are awarded jointly to the [father] and the [mother] with the [father] having primary physical custody.

(Emphasis added.)

The trial court’s divorce judgment awarded the parties “joint custody,” yet it awarded the father “primary physical custody.” “These terms have been commonly employed by the bench and bar; however, in light of the definitions of the types of custody set out in the joint-custody statute, those older terms are unclear and ... serve only to confuse the issue of custody.” Harris v. Harris, 775 So.2d 213, 214 (Ala.Civ.App.1999). Using the proper terms set out in the joint-custody statute, § 30-3-151, Ala.Code 1975, the divorce judgment can be construed only one way — that is, it awards the father sole physical custody and the mother and the father joint legal custody. See Harris, 775 So.2d at 214.

The agreement incorporated into the modification order provided, in pertinent part:

“SECOND: Section II, entitled CUSTODY AND VISITATION RIGHTS, is hereby modified and shall read as follows:
“Parties are hereby awarded Joint Custody of the minor children of the parties, namely [M.F.], whose date of birth is ... 1996 and [E.F.], whose date of birth is ... 1998, with the following monthly visitation schedule.
“[The mother] shall have custody of the minor children of the parties every other week, beginning Monday after school (3:00 p.m.) until Sunday 6:00 p.m.
“[The father] shall have custody of the minor children every other week beginning Monday at 6:00 p.m. until Sunday 6:00 p.m. During these weeks, [the mother] shall have the children from 3:00 p.m. until 6:00 p.m. Monday through Friday.
“Parties have agreed that during the weeks where [the father] shall have custody, [the mother] will drop children off at Valleydale Baptist Church at six (6:00 p.m.) Monday through Friday. Parties have agreed that Children will participate in basketball practice and cheer-leading practice, which take place at Valleydale Baptist Church on Mondays and Thursdays from 6:00 p.m. until 6:45 p.m. Parties have agreed that every reasonable effort will be made for the children to participate in sporting activities, which will be on Saturdays beginning in January 2005.
“Said visitation shall begin week of 11/15/04 with the [father’s] above indicated schedule. Parties have agreed that the [mother] shall have custody of the children the weekend of 11/12/04.
“Parties have agreed to remain in close proximity (Shelby County Area) for residential purposes.
“At such other times as agreed upon by parties.
“EIGHTH: All other provisions of the Final Judgment of Divorce, Ordered on the 17th day of June, 2004, approving and ratifying an Agreement entered into by the parties on the 8th day of June 2004 shall remain unchanged, unaltered and in full force and effect.”

(Emphasis added.)

“Where a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong.” M.S.H. v. C.A.H., 829 So.2d 164, 166 (Ala.Civ.App.2002).

A divorce agreement is considered unambiguous if only one reasonable meaning can be given to the words of the agreement. Vainrib v. Downey, 565 So.2d 647, 648 (Ala.Civ.App.1990). “ ‘[W]hen [an agreement], by its terms, is plain and free from ambiguity, it must be enforced as written.’ ” Jones v. Jones, 722 So.2d 768, 769 (Ala.Civ.App.l998)(quoting American Standard, Inc. v. Goodman Equip. Co., 578 So.2d 1083,1085 (Ala.1991)).

Section 30-3-151, Ala.Code 1975, defines joint custody as “[j]oint legal custody and joint physical custody.” Only one reasonable meaning can be given to the section of the December 2004 modification order, which stated in pertinent part:

“SECOND: Section II, entitled CUSTODY AND VISITATION RIGHTS, is hereby modified and shall read as follows:
“Parties are hereby awarded Joint Custody of the minor children of the parties.... ”

(Emphasis added.) This section in the parties’ agreement incorporated into the modification order clearly replaced in its entirety section II of the parties’ agreement incorporated into the divorce judgment and awarded the parents joint custody of the children despite the father’s contention otherwise.

“Because the parties had joint custody, this case is governed by Ex parte Couch, 521 So.2d 987 (Ala.1988), which held that the best-interest standard applies to the modification of an existing joint-custody arrangement.” Nave v. Nave, 942 So.2d 372, 376 (Ala.Civ.App.2005).

“[W]here a trial court bases its custody determination on an improper custody-modification standard, that judgment is due to be reversed.” Spears v. Wheeler, 877 So.2d 607, 608 (Ala.Civ.App.2003). In Ex parte W.T.M., 851 So.2d 55, 57-58 (Ala.Civ.App.2002), the main opinion stated:

“The rule [established in] Ex parte Perkins[, 646 So.2d 46 (Ala.1994),] is that when the trial court uses an improper, higher standard to deny relief to a party requesting a modification of a prior custody order, the appellate court will not review the evidence under the correct lower standard and direct the award of custody. Instead, the appellate [court] reverses the judgment and remands the cause for the trial court to make a custody determination, applying the correct standard.”

Based on the foregoing, we find that, in this custody-modification proceeding, the trial court improperly applied the heavier burden of McLendon when Couch supplied the proper burden of proof. See Rehfeld v. Roth, 885 So.2d 791, 796 (Ala.Civ.App.2004). Therefore, we reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion.

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

REVERSED AND REMANDED.

THOMPSON and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, with writing, which PITTMAN, J., joins.

MURDOCK, Judge,

concurring in the result.

I do not agree that the term “primary physical custody,” despite being a term that is not defined in § 30-3-151, Ala.Code 1975, is unclear or confusing, at least as a general rule. The trial courts of this state commonly use that term, as does this court and our Supreme Court.

Nor do I agree with the suggestion in the main opinion that only one reasonable meaning — that which is given in § 30-3-151 — can be considered for the term “joint custody” in a given trial court judgment or order. Our purpose as an appellate court is to discern the intent of the lower court’s judgment or order, and the fact of the matter is that our trial courts and even this court, on occasion and sometimes carelessly, use the term “joint custody” other than in precise compliance with the definition thereof in § 30-3-151(3), Ala. Code 1975 (i.e., it sometimes is used as a reference either to joint physical custody or to joint legal custody, rather than to both). Although it might be preferable if all judges always used the term “joint custody” in precise compliance with the manner in which it is defined by the statute, the practical fact is that, either by custom or by mistake, that is not always the case. Thus, it can be important to examine the context in which the term is used.

In this case, however, the context in which the term “joint custody” is used implicates other provisions of the trial court’s judgment that prescribe weekly alternation of physical custody between the two parents, thus making it clear that the term “joint custody” in the trial court’s order here should be construed as including joint physical custody, as well as the preexisting joint legal custody. I therefore concur in the result reached by the main opinion.

PITTMAN, J., concurs.