author: CRAWLEY, Presiding Judge.

text:
    Claris ROWE v. Clara DUNN.
    2040447.
    Court of Civil Appeals of Alabama.
    March 3, 2006.
    Rehearing Denied July 21, 2006.
    Charles H. Pullen, Huntsville, for appellant.
    Jeffrey McLaughlin of McLaughlin & Edmondson, LLC, Guntersville, for appel-lee.
   CRAWLEY, Presiding Judge.

Clara Dunn filed a motion to enforce a consent judgment against Claris Rowe on July 9, 2004, alleging that Rowe had failed to comply with the terms of that consent judgment. The trial court, after ore tenus proceedings, and after visiting the real property involved in this case, entered an order holding that Rowe had violated a portion of the consent judgment. Rowe timely appealed, whereupon this case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

The facts relevant to this case are simple. In 1999 Dunn and her husband sued Rowe, their neighbor, seeking an injunction to alleviate several problems that the Dunns alleged stemmed from a chicken farm Rowe maintained on his property. The trial court entered a preliminary injunction, finding that the odor the Dunns complained about did not constitute a nuisance but that other aspects of the chicken farm’s operation did. The court found, in its order granting the preliminary injunction, that the Dunns’ chronic respiratory problems were caused by the operation of the chicken houses so close to their residence. Large exhaust fans used by Rowe to cool the chicken houses, the court determined, were blowing an inordinate amount of dust and chicken feathers onto the residential property of the Dunns, located across the street from Rowe’s property. The trial judge noted in his order granting the preliminary injunction that a visit to the property in question revealed that there was “a great lack of ground cover in the areas where the exhaust fans are located and very poor foliage in the form of a buffer zone between the chicken houses and the road that separates the chicken houses from the [Dunns’] residence.”

The trial judge noted in the order granting the preliminary injunction that he was raised working on a farm in rural Marshall County. He remarked in the order granting the preliminary injunction that he had several neighbors in his childhood community that raised chickens. Consequently, it appears that the trial judge in this case was particularly well suited to resolve the dispute. The trial court’s preliminary injunction did not require Rowe to cease operations, but it did require the parties to submit a plan to the court that would describe how Rowe would abate the nuisance.

On January 10, 2002, the trial court entered a consent judgment incorporating the provisions of the preliminary injunction and implementing a permanent injunction. The portions of the consent judgment relevant to this case provide:

“Section I. This order follows the prior order of November 10, 2000 (Order Granting Preliminary Injunction) and is to be read in combination with and in reference to that order.
“Section II. [Rowe] agrees to undertake the following measures to abate the nuisance of dust and chicken feathers on [his] property:
“A. Erection and, Maintenance of a Physical Barrier.
“1. [Rowe] agrees to plant and maintain vegetation in accordance with the sketch attached hereto as Exhibit A, consisting of Leyland cypress trees in two staggered rows, autumn olive shrubs in two staggered rows, and Bermuda grass as ground cover from the edge of the chicken houses to the tree/ shrub border.
“2. [Rowe] further agrees to erect a screen mesh barrier 12 feet high, running in the dimensions shown on Exhibit B, which shall be located not more than 20 feet from the edge of the side of the chicken houses which the screen runs parallel to, for a distance of 36 feet down both sides (and 60 feet across) the northern-most two houses as shown on Exhibit B. The screen mesh is to be of the same kind and quality as the sample attached to Exhibit B.
“3. [Rowe] further agrees to install air deflector hoods as shown on Exhibit C on all fans on the four houses closest to the [Dunns’] property.
“4. The entire physical barrier is to be completely erected within 60 days of the date of this order.”

(Emphasis added.)

On July 9, 2004, Dunn moved the trial court to enforce the January 10, 2002, consent judgment. Dunn alleged that Rowe was not complying with various terms of the consent judgment. In particular Dunn claimed that the screens Rowe had constructed around the chicken houses were often down on the ground and thus were ineffective in preventing chicken feathers and dust from blowing onto her property.

The trial court conducted ore tenus proceedings on Dunn’s motion and also visited the property. The trial court’s order on Dunn’s motion states in relevant part:

“This cause was heard on January 7, 2005 on [Dunn’s] post judgment motion to enforce this Court’s Judgment. Both parties were present and represented by counsel. After considering the evidence presented and after making a visit to the property and inspecting the same, it is ORDERED as follows:
“1. [Rowe] has willfully allowed the screen mesh barrier to remain down for prolonged periods of time. [Rowe] shall henceforth not allow the mesh barrier to be down for more than J days at any one interval.
“2. The Court finds [Rowe] has not violated any other portion of the judgment in this case.
“3. The Court also notes that the fans in question are angled downward and are not set vertically within the fan hood.
“4. [Dunn] is awarded an attorney fee of $1,000.00 and a judgment is entered in favor of [Dunn] and against [Rowe] for said sum.
“5. Costs taxed to [Rowe].
“DONE this 7th day of January 2005.”

Although the trial court called Dunn’s “motion to enforce consent judgment and/or other relief’ a “post judgment” motion, in actuality the motion instigated a new, independent action and was assigned a new case number. On appeal, Rowe argues that the trial court’s order enforcing its prior judgment and amending the permanent injunction to prohibit him from leaving the mesh barriers down for more than four days at a time adversely affected his rights and was unjust. Specifically, Rowe asserts that the court’s judgment will cause him harm because repairing the screens around the chicken houses when chickens are present will “spook” his chickens, causing them to run to one side of the chicken houses, pile up inside, smother, and die. Rowe testified that the most chickens he has lost when they “pile up” has been 300. Rowe operates at least 4 chicken houses that hold 20,000 to 25,000 “broilers,” i.e., chickens, each.

“We note that under the ore tenus standard of review, the trial court’s findings of fact based on oral testimony, and a judgment based on those findings, are given a presumption of correctness. A judgment based on such findings will not be reversed unless it is shown to be plainly and palpably wrong. Federal Home Loan Mortgage Corp. v. Bates, 644 So.2d 925 (Ala.1994). The appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence. Ex ‘parte Kent Corp., 641 So.2d 242 (Ala.1994). The reason for giving such deference to the trial judge’s findings based on disputed evidence in ore tenus proceedings is that the trial judge has the benefit of observing the witnesses’ manner and demeanor and has the better opportunity to pass upon the credibility of their testimony. Charles Israel Chevrolet, Inc. v. Walter E. Heller & Co., 476 So.2d 71 (Ala. 1985).”

Ex parte Pielach, 681 So.2d 154, 154-55 (Ala.1996). However, to the extent our review concerns only legal issues and not factual determinations, we note that a permanent injunction is reviewed de novo. Shelby County Treatment Ctr. v. Edmondson, 945 So.2d 1048,1053 (Ala.Civ. App.2005); City of Dothan v. Eighty-Four West, Inc., 871 So.2d 54, 60 (Ala.Civ.App. 2003) (Murdock, J., concurring specially in overruling of application for rehearing); see also TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1242 (Ala.1999). “To be entitled to a permanent injunction, a plaintiff must demonstrate success on the merits, a substantial threat of irreparable injury if the injunction is not granted, that the threatened injury to the plaintiff outweighs the harm the injunction may cause the defendant, and that granting the injunction will not disserve the public interest.” 751 So.2d at 1242 (citing Clark Constr. Co. v. Pena, 930 F.Supp. 1470 (M.D.Ala.1996)). Additionally, “[t]he power of a court to enforce its valid orders and judgments is inherent, and it may take such legal steps as are necessary or expedient to render them binding and operative.” Jones v. City of Opelika, 242 Ala. 24, 27, 4 So.2d 509, 512 (1941)(citing 35 Am.Jur. 126, § 390).

In this case, the trial court heard oral testimony and even went so far as to visit the property in question. The trial court then specifically found that Rowe had wilfully allowed the screen-mesh barrier to remain down for prolonged periods. As noted above, the court ordered Rowe not to allow the barrier to be down for more than four days at any one interval. Rowe argues that this order should be reversed because it adversely affects his rights and is unjust. Rowe cites three cases for this proposition, Young v. Reddock, 437 So.2d 1247, 1249 (Ala.1983), Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala. 1979), and Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978).

There are several reasons why we should affirm the trial court’s judgment. First, the cases Rowe cites relate to Rule 60(b), Ala. R. Civ. P., postjudgment motions; however, this case does not involve a Rule 60(b) motion. The purpose of Rule 60(b) is to “relieve a party or a party’s legal representative from a final judgment -” Rule 60(b), Ala. R. Civ. P. In this case, Dunn moved the court to enforce a judgment, and neither Dunn nor Rowe moved the court for relief from a judgment. Consequently, the cases cited by Rowe advance an argument that is of little help to him in determining under what specific circumstances a trial court may have exceeded its discretion in deciding to enforce a previous judgment. “ “Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant.’ ” Henderson v. Alabama A & M Univ., 483 So.2d 392, 392 (Ala.l986)(quoting Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984)); see also Rule 28(a)(10), Ala. R.App. P.

The second reason to affirm the trial court’s judgment is that Dunn has met all the elements entitling her to a permanent injunction. Dunn demonstrated success on the merits of her claim that Rowe was not complying with the consent judgment when the trial court found that as a matter of fact the screen mesh had been left down for prolonged periods of time.

Considering the trial judge’s farming background in rural Alabama, it is likely that he was acutely aware of the possibility that Rowe’s chickens could become spooked if Rowe were to comply with the consent judgment and that he balanced that risk against the risk of respiratory ailments Dunn would suffer if Rowe did not comply with the consent judgment. The record indicates that out of the approximately 80,000 to 100,000 “broilers” Rowe could house in his chicken houses, the greatest number of chickens he ever lost at one time was 300. The trial court evidently weighed that loss against Dunn’s ailments, which included chronic respiratory problems directly related to dust and feathers blowing onto her property from Rowe’s property. Furthermore, the trial judge’s ability to properly balance these competing interests was aided by his visit to the property in question. In this case, it appears that the substantial threat of Dunn suffering irreparable injury if the injunction was not granted outweighs the harm that Rowe may suffer because of the injunction.

Finally, no evidence was presented to indicate that the injunction would disserve the public interest. Accordingly, we conclude that the injunction in this case does not harm the public.

Under these circumstances, the trial judge’s discretion to fashion an appropriate remedy to enforce the consent judgment deserves particular deference. Additionally, the remedy the trial court imposed does not appear to be unjust. Consequently, we affirm the judgment of the trial court.

Dunn also requested that this court award damages, pursuant to Rule 38, Ala. R.App. P., on the basis that this is a frivolous appeal. We deny that motion.

MOTION DENIED; AFFIRMED.

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

      . In the initial case, Dunn and her husband were both plaintiffs. Mr. Dunn is not a party to this case, because he had died by the time Mrs. Dunn moved to enforce the consent judgment on July 9, 2004.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Lloyd Hollis HAYES v. Carol Mason HAYES.
    2040653.
    Court of Civil Appeals of Alabama.
    April 14, 2006.
    Rehearing Denied July 21, 2006.

      Jamy B. Poss, Florence, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Jennifer M. Bush, asst, at-tys. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

Lloyd Hollis Hayes (“the father”) appeals from a judgment entered by the Lauderdale Circuit Court following an ore tenus hearing concerning the father’s motion to modify his child-support obligation.

The father and Carol Mason Hayes (“the mother”) were divorced on May 28, 2002, by a judgment that incorporated an agreement of the parties; that incorporated agreement included a provision requiring the father to pay child support in the amount of $415 every two weeks. At the time that the parties finalized the agreement, the father had been arrested on a criminal charge of possession of obscene material. Although the father was employed as a local fire marshal, he had been placed on administrative leave without pay pending resolution of the criminal charge. After the parties’ agreement had been incorporated into a final divorce judgment, the father was convicted of felony possession of obscene material and, pursuant to § 15-20-20.1, Ala.Code 1975, was required to register as a sexual offender.

In June 2004, the father filed a petition requesting that the trial court modify his child-support obligation because, he claimed, his felony conviction had resulted in the termination of his employment as a fire marshal and, in addition, had prevented him from finding a job at which he might earn a salary comparable to the one he earned in his former employment. The trial court conducted an ore tenus proceeding on March 17, 2005, and entered its judgment two weeks later.

In its judgment, the trial court granted the father’s request for a reduction in child support to $625 per month because one of the parties’ two children had reached the age of majority. The trial court determined, however, that the father’s change in income was not a material change in circumstance because the loss of employment “was due to his own misconduct,” and that court determined that the father was, therefore, voluntarily underemployed. Additionally, the trial court made a determination that the father was in criminal contempt of court as to each occasion that he had failed to make his monthly child-support payment before the modification petition was filed, a total of 22 offenses. The trial court sentenced the father to 3 days of incarceration for each of the 22 separate acts of contempt, or a total of 66 days of incarceration; that sentence was stayed pending this appeal.

The father appeals and alleges that the trial court erred in determining that he was voluntarily underemployed and in finding him in contempt of court for failing to pay his monthly child support. In addition, the father asserts that the child-support-guidelines forms required by Rule 32, Ala. R. Jud. Admin., were not used to determine his prospective child-support obligation. Finally, the father posits that ordering him to be incarcerated for his failure to pay child support was in error. The first and last claims of error are interrelated in that the father asserts that the trial court’s alleged error in making a finding of voluntary underemployment resulted in the improper sentence of incarceration for contempt of court for failing to pay past-due child support.

When a trial court’s judgment regarding child support, including a determination of an arrearage, is based on ore tenus evidence, that judgment is presumed to be correct and will not be reversed on appeal unless it is plainly and palpably wrong. State ex rel. Scott v. Scott, 637 So.2d 892, 893 (Ala.Civ.App.1994). Moreover, the determination of a child-support arrearage is within the sound discretion of the trial court, and absent a showing of an abuse of discretion the trial court’s judgment will not be reversed. Abel v. Abel, 824 So.2d 767, 768 (Ala.Civ.App.2001); see also Hill v. Hill, 730 So.2d 248 (Ala.Civ. App.1999).

The father’s first contention, that the trial court erred when it determined him to be voluntarily underemployed, is unsupported by citations to any statutes or caselaw that would provide affirmative support for the father’s contention. Rather, the father attempts to distinguish this case from this court’s decisions in Van Houten v. Van Houten, 895 So.2d 982 (Ala. Civ.App.2004), and Cunningham v. Cunningham, 641 So.2d 807 (Ala.Civ.App. 1994). In both Van Houten and Cunningham, the conduct that prevented the pay-ors in those cases from meeting their child-support obligations occurred after the obligations had been established in divorce judgments. The father asserts here that, at the time he committed the actions that eventually led to his criminal conviction, he had not yet been divorced from the mother and was not obligated to make child-support payments under the divorce judgment. However, there is nothing in the holdings of Van Houten and Cunningham that would indicate that the timing of the act resulting in the parent’s loss of prior employment is material to a determination of the voluntariness of that parent’s unemployment or underemployment under Rule 32(B)(5), Ala. R. Jud. Admin. The father in this case would have remained obligated to provide support for his children even if his voluntary actions had not resulted in a felony conviction.

We note that the trial court, in exercising its discretion to find the father to be voluntarily underemployed, took into consideration, the fact that the father waited 18 months after his felony conviction to seek a judicial adjustment to his monthly child-support obligation and to assert that he had been unable to find employment with a salary comparable to the one that he earned in his former occupation. From the date of the entry of the divorce judgment in May 2002 until the father filed his petition to modify in June 2004, the father failed to make many of the court-ordered payments of $415 every two weeks, and an extensive arrearage accrued during that time; in fact, by the time of trial, the father’s arrearage totaled more than $7,000.

Alabama law is settled that “[a] party may not unilaterally reduce child support payments without the consent of the court.” Phillippi v. State ex rel. Burke, 589 So.2d 1303, 1304 (Ala.Civ.App.1991). The law is also well established that child-support payments that mature or become due before the filing of a petition to modify are not modifiable. See Ex parte State ex rel. Daw, 786 So.2d 1134, 1137 (Ala.2000); and Ex parte State ex rel. Lamon, 702 So.2d 449, 450 (Ala.1997). A child-support obligation may be modified only as to installments that accrue after the filing of a petition to modify the child-support obligation. Rule 32(A)(3)(a), Ala. R. Jud. Admin.; see also Frasemer v. Frasemer, 578 So.2d 1346, 1348 (Ala.Civ.App.1991) (court-ordered child-support payments “become final money judgments on the dates that they accrue and are thereafter immune from change or modification”). Based upon the authorities cited above, the father’s contention that he could not be held in contempt for failing to pay the court-ordered monthly child-support amounts that accrued before he filed his modification action are meritless.

Moreover, in his attempt to challenge the trial court’s determination that he was voluntarily underemployed, the father fails to cite any statutes or caselaw in support of this contention. The father’s “argument” in his brief on appeal as to this issue, therefore, does not comply with Rule 28(a)(10), Ala. R.App. P. An appellate court is under no obligation to perform research or to make arguments for appellants. See generally Rule 28, Ala. R.App. P.; Ex parte Showers, 812 So.2d 277, 281 (Ala.2001); and Brown v. Brown, 719 So.2d 228, 230 (Ala.Civ.App.1998). We conclude, based upon each of the reasons stated above, that the trial court did not err to reversal in finding the father voluntarily underemployed and in finding him to be in contempt of court for failing to pay the court-ordered child support that accrued before the filing of his modification action. See also Preussel v. Preussel, 874 So.2d 1124 (Ala.Civ.App.2003).

The father’s only remaining contention is that the trial court failed to utilize the required child-support-guidelines forms in making its determination of the amount of prospective child support owed by the father. This court has held that if the record does not reflect compliance with Rule 32(E), Ala. R. Jud. Admin, (which requires the filing of “Child Support Obligation Income Statement/Affidavit” forms (Forms CS-41) and a “Child Support Guidelines” form (Form CS-42)), and if child support is made an issue on appeal, this court will remand (or reverse and remand) for compliance with the rule. See Martin v. Martin, 637 So.2d 901, 903 (Ala. Civ.App.1994). On the other hand, this court has affirmed child-support awards when, despite the absence of the required forms, we could discern from the appellate record what figures the trial court used in computing the child-support obligation. See, e.g., Dunn v. Dunn, 891 So.2d 891, 896 (Ala.Civ.App.2004); Rimpf v. Campbell, 853 So.2d 957, 959 (Ala.Civ.App.2002); and Dismukes v. Dorsey, 686 So.2d 298, 301 (Ala.Civ.App.1996). Nevertheless, without the child-support-guidelines forms, it is sometimes impossible for an appellate court to determine from the record whether the trial court correctly applied the guidelines in establishing or modifying a child-support obligation. See Horwitz v. Horwitz, 739 So.2d 1118, 1120 (Ala.Civ. App.1999).

The record in this case contains only one Form CS-41 prepared by the father; it reflects an amount between $1,200 and $1,400 in monthly income. However, the judgment expressly noted that the trial court had imputed a monthly income to the father of $4,417 and that the actual monthly income of the mother totaled $3,245. Calculating the father’s child-support obligation under Rule 32 based solely on his percentage share of the parties’ combined incomes (as reflected in the judgment) would result in a child-support obligation significantly greater than $625 per month. In fact, no application of the income figures specified by the trial court to the schedule of basic child-support obligations in the child-support guidelines supports the $625 monthly child-support award, and the trial court did not expressly state that it had deviated from the guidelines or state any reasons why a deviation from the guidelines would be necessary. See Appendix to Rule 32, Ala. R. Jud. Admin.; see also Mosley v. Mosley, 770 So.2d 638, 640 (Ala.Civ.App.2000).

Accordingly, we must reverse the judgment modifying the child-support award and remand the cause for the trial court to properly determine the father’s prospective child-support obligation in compliance with Rule 32, Ala. R. Jud. Admin. The trial court may, in its discretion, compute the obligation according to the guidelines or expressly state the reasons why a deviation from the guidelines is necessary in this case. See also Harmon v. Harmon, 928 So.2d 295 (Ala.Civ.App.2005).

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

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

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

      . In Alabama, the only statute under which possession of obscene material may be punished as a felony offense is § 13A-12-192(b), Ala.Code 1975, a portion of the Alabama Child Pornography Act.

      . That reduction in the child-support obligation was made retroactive to June 18, 2004, the date the father filed his modification petition.

      . The father does not make any argument regarding the finding of voluntary underemployment as it relates to his prospective child-support obligation, and we therefore do not reach that issue.

      . In Carr v. Broyles, 652 So.2d 299 (Ala.Civ. App.1994), this court reversed an order of incarceration because the nonpaying parent did not have funds to pay a lump-sum child-support arrearage. In this case, the trial court received evidence indicating that the father had failed to pursue options to borrow against his retirement account. Additionally, the trial court only ordered the father to pay $175 per month toward the child-support ar-rearage, rather than ordering him to pay the entire amount in one lump sum.


text:
    Carl Allen GOETSCH v. Joyce P. GOETSCH.
    2040309.
    Court of Civil Appeals of Alabama.
    April 14, 2006.
    Rehearing Denied Aug. 4, 2006.
    Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.
    J. Brice Callaway, Huntsville, for appel-lee.
   CRAWLEY, Presiding Judge.

Carl Allen Goetsch (“the father”) and Joyce P. Goetsch (“the mother”) were divorced in May 2002 after what may best be described as extremely acrimonious and protracted proceedings. The trial court awarded custody of the parties’ three children to the father, and the mother appealed to this court. We affirmed the trial court’s judgment as to the custody award and the other issues raised by the mother in her appeal, without an opinion. See Goetsch v. Goetsch, 885 So.2d 858 (Ala.Civ. App.2003) (table) (“Goetsch J”). While Goetsch I was pending on appeal, a dependency proceeding regarding the children was instituted by the Department of Human Resources (“DHR”). After an investigation, however, DHR dismissed the dependency action. In July 2003, the mother filed a petition seeking a modification of custody. The father filed a counterpetition for modification of certain visitation provisions of the original judgment and a petition for a rule nisi, alleging that the mother was in contempt for failing to comply with certain provisions of the judgment and for failing to return certain personal property to the father as required by the judgment. The trial court awarded custody to the mother, ordered that the father pay $7,000 per month in child support, and denied the father’s claims for relief. The father appeals.

The father argues four issues on appeal. He first argues that the trial court erred by refusing to admit the deposition testimony of Dr. Caroline Batchelor, a psychologist who treated the children during the original divorce proceedings and after the divorce proceedings; she was deposed in October 2002 as part of the dependency action. He also argues that the trial court erred in transferring custody to the mother because, he contends, the mother failed to meet the burden imposed by Ex parte McLendon, 455 So.2d 863 (Ala.1984). The father further argues that the award of $7,000 per month in child support is not supported by any evidence regarding the needs of the children and that the trial court erred by failing to enforce certain provisions of the divorce judgment with which the father contends the mother had failed to comply. We will first address the father’s contention that the trial court erred by failing to admit the deposition testimony of Dr. Batchelor.

The father argues that Dr. Batchelor’s deposition testimony was relevant to the issues raised in the mother’s modification petition and that it should have been admitted pursuant to Rule 804(b)(1), Ala. R. Evid., which permits the admission of the former testimony of an unavailable witness. The mother objected to the admission of Dr. Batchelor’s deposition testimony on the ground that, although she had been present at and had participated in the deposition, the issues in the present action were not identical to the issues in the dependency action and her cross-examination of Dr. Batchelor did not focus on the custody issue before the court in the modification ease.

Rule 804(b)(1), Ala. R. Evid., reads as follows:

“(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
“(1) Former Testimony. Testimony of a witness, in a former trial or action, given (A) under oath, (B) before a tribunal or officer having by law the authority to take testimony and legally requiring an opportunity for cross-examination, (C) under circumstances affording the party against whom the witness was offered an opportunity to test his or her credibility by cross-examination, and (D) in litigation in which the issues and parties were substantially the same as in the present cause.”

The mother’s argument to the trial court was that the issues in the dependency case and the modification case were not similar enough and that, therefore, her cross-examination of Dr. Batchelor during the deposition taken in conjunction with the dependency case was not directed to issues involved in the custody-modification case and instead focused solely on dependency issues. Rule 804(b)(1) clearly requires that the issues in the two cases be “substantially” similar. However, “[i]t is not essential that all of the issues on the former proceeding shall have been precisely the same as all the issues on the present trial.” 2 Charles W. Gamble, McElroy’s Alabama Evidence § 245.07(7) (5th ed.1996). That is, the issues in both cases need not be identical to satisfy the rule.

Our supreme court considered the admission of the former testimony of a deceased individual in Nordan v. State, 143 Ala. 13, 39 So. 406 (1905). The deceased witness, the alleged murder victim, had previously testified in a seduction case against the defendant regarding the authenticity of certain letters and stated that the letters were in the defendant’s handwriting. The Nordan court permitted the introduction of the deceased witness’s testimony, stating:

“We recognize the rule that in admitting evidence of the testimony of a witness on a former trial who has since died, it must be shown that the testimony of the deceased witness was given in a case where the parties and issues were the same as in the case in which it is proposed to prove the testimony of such deceased witness. And it is true that the main issue in the seduction case, in which the deceased witness testified, is entirely different from the main question in the present case. But as to the particular evidence here offered the issue in the two cases is identical — that is, the genuineness of the letters. The parties were the same in.both cases, and the particular issue upon which the evidence was offered was the same, and we think this satisfies the rule .... ”

Nordan, 143 Ala. at 25, 39 So. at 411.

Similarly, the Court of Appeals admitted, in an action seeking the return of commissions and damages, the former testimony of a deceased witness taken in conjunction with a prior proceeding before the Real Estate Commission seeking to suspend or revoke R. Clyde Wellden’s real-estate broker’s license on the ground of his having perpetrated a fraud in an auction sale. Wellden v. Roberts, 37 Ala. App. 1, 5, 67 So.2d 69, 72 (1951). After briefly discussing Nordan, the court commented that the underlying issue in both cases was the allegation that Wellden had committed fraud, and it decided that Wellden would have had a similar motive to cross-examine the witness in the proceeding before the Real Estate Commission as he would have in the civil case; therefore, the court concluded that the testimony was properly introduced into evidence. Wellden, 37 Ala.App. at 5-7, 67 So.2d at 72-74.

After reviewing the evidence presented at the modification trial, and especially the testimony regarding the focus of the dependency investigation, we have concluded that the same concerns that prompted DHR’s involvement in the dependency case, including the eldest child’s suicidal and homicidal ideations and allegations of abusiveness and alcoholism by the father, were also relied upon by the mother in her quest for modification of the original custody judgment. We cannot agree with the mother that the underlying issues presented in both cases — the fitness of the parents to parent the children in the dependency case and whether a change in custody to the mother would materially promote the children’s best interest in the modification case — are not substantially similar. Because Dr. Batchelor’s deposition testimony focuses on the children’s behaviors and the possible reasons for those behaviors, the trial court could have reached a different result if that testimony had been considered and believed. See Dinmark v. Farrier, 510 So.2d 819, 821 (Ala.1987) (“In order for the admission of evidence to be reversible error, ‘the error complained of [must have] probably injuriously affected [the] substantial rights of the parties.’ Rule 45, A[la]. R.App. P. The burden is with the appellant not only to show error, but also to show probable injury.”). Accordingly, we reverse the judgment of the trial court and remand the cause for the trial court to admit the deposition testimony of Dr. Batchelor and, after consideration of that testimony in conjunction with the other evidence already of record, to enter a new judgment on the mother’s modification petition.

In light of our reversal of the judgment and the possibility that the trial court could enter a different judgment on remand, the father’s other issues are preter-mitted at this time.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . On appeal, the mother, however, contends that the father did not properly demonstrate Dr. Batchelor’s unavailability. At trial, the mother’s counsel conceded that Dr. Batchelor was not presently within the state. Thus, the father was not required to further demonstrate Dr. Batchelor's unavailability.


author: PITTMAN, Judge. CRAWLEY, Presiding Judge,

text:
    T.E.T. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2041110.
    Court of Civil Appeals of Alabama.
    July 21, 2006.
    Joel L. Sullivan III, Huntsville, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R.App. P.; Rule 10(a)(1), Ala. R.App. P.; Ala.Code 1975, § 12-15-63; Ex parte State Dep’t of Human Res., 624 So.2d 589, 593 (Ala.1993); and Ex parte Beasley, 564 So.2d 950, 954-955 (Ala.1990).

THOMPSON and BRYAN, JJ., concur.

CRAWLEY, P.J., dissents, with writing.

MURDOCK, J., dissents, without writing.

CRAWLEY, Presiding Judge,

dissenting.

Because I do not believe that T.E.T. (“the father”) had proper notice that he had the right to have counsel appointed to represent him if he was indigent, I respectfully dissent from the no-opinion af-firmance in this termination-of-parental-rights case.

In my view, the record does not indicate that the father was properly informed that he had a right to an appointed attorney if he was indigent. First, although the referee’s report stated that the father was told, in a pretrial hearing, that he had a right to counsel, that is different from being informed by the trial judge that he had a right to appointed counsel if he was indigent. Second, a notation on the trial court’s case-action summary indicated only that the father was served with a copy of the summons, complaint, and petition and that “neither parent (putative) requested an appointment of counsel.” The fact that the father did not ask for counsel does not mean that he was informed that he had a right to counsel. Third, the absence in the record of the summons, which the father sought to have included in the record when he requested that the trial court supplement the record to include “any notice of right to counsel addressed to [the father],” should not be considered a “fact” that supports the proposition that the father had proper notice. Granted, Rule 10(a)(1), Ala. R.App. P., provides that the summons shall not be included in the record on appeal unless specifically designated by a party; however, in this case the father clearly attempted to supplement the record appropriately, and to penalize him for the trial court’s failure to include the summons in the record in this parental-rights termination case represents an overly technical, and unjust, construction of the rule. See Rule 10, Ala. R.App. P., Committee Comments (stating that “[s]ince each party has the option to include such matters as he deems relevant and appropriate [in the record], this rule will abolish the existing presumption that if there is an omission from the record of any matter essential to a decision of any question presented on appeal, the ruling of the trial court will be deemed correct”); see also Rule 1, Ala. R.App. P. (stating that the Rules of Appellate Procedure “shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits”).

Finally, I note that at the start of the parental-rights termination hearing, the trial judge stated:

“It has also been pointed out to me this morning that neither [the mother] nor [the father] have attorneys that are representing them with regard to the matters that are before the Court here today.
“This Court notes that both the parties were served personally with summons, complaints and other materials that indicated to them that they could come to Court and apply to have an attorney appointed to represent them with regard to these matters and neither have come forward prior [to] today’s date.”

The above statement does not affirmatively indicate that the father was properly told he had a right to counsel. If anything, the above statement indicates that the parents desired to have counsel appointed to them, but, as the trial court stated, they did not “come forward prior [to] today’s date.” Certainly, the trial judge did not, at that time, inform the father of his rights or ask the father if he was aware that he could have an attorney appointed to represent him.

It is a long-established precedent of this court that “[t]he right of the parents of the child in a dependency case to be represented by counsel at every stage of the proceeding is a fundamental one protected by statute and court decision.” Smoke v. State Dep’t of Pensions & Sec., 378 So.2d 1149, 1150 (Ala.Civ.App.1979) (citing § 12-15-63, Ala.Code 1975; Crews v. Houston County Dep’t of Pensions & Sec., 358 So.2d 451 (Ala.Civ.App.1978); and In re Ward, 351 So.2d 571 (Ala.Civ.App.1977)). Thus, we have noted that the “statute [i.e., § 12-15-63,] places upon the court the duty of informing the parents, guardian or custodian of their right to counsel and their right to have counsel appointed where they are unable for financial reasons to retain their own.” Smoke, 378 So.2d at 1150. Although it is true that this case concerns a statutory right, it is also true that a parent’s right to be a parent of his or her own child is so fundamental to our society that strong procedural safeguards must be in place to protect that right. Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054,147 L.Ed.2d 49 (2000)(recogniz-ing that parents have a fundamental right to make decisions concerning the care, custody, and control of their own children, or, in other words, a fundamental right to be parents); see also J.A.H. v. Calhoun County Dep’t of Human Res., 846 So.2d 1093 (Ala.Civ.App.2002) (noting that although the basis of the constitutional right to counsel in criminal cases differs from the statutory right to counsel in termination-of-parental-rights cases, there is enough of a parallel between the two types of cases to require a trial court that relieves an appointed attorney in a termination-of-parental-rights case to appoint substitute counsel), and Watts v. Watts, 706 So.2d 749, 752 (Ala.Civ.App.1997) (Crawley, J., dissenting)(noting that a trial court should have an affirmative duty to advise a litigant that he had a right to counsel when faced with contempt for a failure to pay court ordered-child support and alimony).

Because the right to have appointed counsel if one is indigent is so important in a parental-rights termination case, I believe that a trial judge has a duty to determine that a parent is aware of that right. Cf. Ex parte Parcus, 615 So.2d 78, 82 (Ala.1993) (Maddox, J. dissenting) (noting that a trial judge has the responsibility to discharge his or her duty to inform an accused person of his or her right to counsel, to discharge this duty properly, and to investigate the knowledge of the accused as to this right “as long and as thoroughly as the circumstances of the case before him demand”).

Because I do not believe that father was properly informed that he could have an attorney appointed to represent him if he was indigent, I must dissent.


author: THOMPSON, Judge. CRAWLEY, Presiding Judge,

text:
    Amy M. Knight BISHOP v. Mark D. KNIGHT.
    2050302.
    Court of Civil Appeals of Alabama.
    July 28, 2006.

      Charles W. Edmondson, Montgomery, for appellant.
    Bob E. Allen, Millbrook, for appellee.
   THOMPSON, Judge.

Amy M. Knight Bishop (“the mother”) appeals from the judgment of the Montgomery Circuit Court (“the trial court”) modifying the custody of James Knight, the oldest son born of the marriage between the mother and Mark D. Knight (“the father”). We reverse and remand.

The parties were divorced in 1997 by the Elmore Circuit Court. Among other things, the divorce judgment, which incorporated an agreement of the parties, awarded the parties joint legal custody of their children, James Knight and Colton Knight (collectively “the children”), with the mother receiving primary physical custody of the children. The divorce judgment awarded the father “reasonable” visitation with the children and ordered him to maintain life insurance for the benefit of the children in the amount of $80,000, to be responsible for 50% of the children’s medical expenses not covered by insurance and 50% of the children’s school costs, and to pay the mother $600 per month in child support.

On May 3, 2005, the father filed in the Elmore Circuit Court a petition to modify custody of James; that court transferred the case to the trial court on June 15, 2005. On August 11, 2005, the mother answered the father’s petition to modify James’s custody by denying the father’s claims. That same day, the mother also filed a counter-petition to modify custody of the children by requesting that she be awarded sole custody of the children. The mother also requested that the father’s child-support obligation be increased and that the father be held in contempt for his failure to maintain life insurance for the benefit of the children and for his failure to pay for 50% of the children’s medical and school costs, as directed by the divorce judgment.

On November 3, 2005, the trial court conducted an ore tenus hearing. On November 23, 2005, the trial court entered a judgment in which it, among other things, awarded custody of James to the father, reduced the father’s monthly child-support obligation to $112.46, ordered the mother to attend counseling with Colton, set a visitation schedule for the father and Col-ton, directed the mother and James to “move slowly” toward regular visitation, and expressed “grave[ ] concern[ ]” for Colton’s “permanent psychological and physical” well-being as a result of his continuing to reside with the mother. The trial court’s judgment also denied all of the claims asserted by the mother in her coun-terpetition. On December 22, 2005, the mother filed a postjudgment motion requesting that the trial court amend the visitation schedule it had set for the upcoming Christmas holiday. After the father filed a response, the trial court denied the mother’s postjudgment motion. The mother timely appealed to this court.

The record reveals the following pertinent facts. The mother remarried in 2001; she and her new husband, Randall Bishop, divorced in 2002. The mother testified that they divorced so that liability for Bishop’s previous tax problems would not attach to the mother; she said that they planned to remarry “on [their] anniversary.” Despite their having divorced in 2002, the mother and Bishop have lived together as husband and wife since their marriage in 2001.

James lived in Montgomery in the mother and Bishop’s house; Colton, who was 13 years old at the time of the hearing, also lived in that house. Bishop’s son from a previous marriage also occasionally stayed at the mother and Bishop’s house. James, Colton, and Bishop’s son each had his own bedroom at the house. At the time of the hearing, James was 15 years old and in the 10th grade. He had begun attending a new school approximately three months before the hearing, and, according to James and the mother, he was making good grades, with the exception of one “D.”

The father had been married twice since his divorce from the mother. At the time of the hearing, he was living with his third wife in Prattville. Also living in the house with the father and his third wife were her 13-year-old son and her 7-year-old daughter. Because the father’s house had three bedrooms, James would have to share a room with his 13-year-old stepbrother if he moved to the father’s house. James testified that he and his stepsiblings were very close.

Because the judgment of divorce had granted the father “reasonable visitation” with the children, the mother and the father had developed a visitation schedule under which the father had the children every other weekend. Though the father could have picked up the children every other Friday evening, he typically did not pick them up until Saturday evening because he worked on Saturdays. Likewise, the father, on occasion, had not picked up the children at all because he did not have enough money to afford the gas required to drive from Prattville to Montgomery. The father did not dispute the mother’s claims that he had not requested to receive more visitation with the children and that he was often late making his child-support payments. Also, the father did not typically visit, call, or give presents to James on his birthday.

The mother testified that the father had been physically abusive to her during their marriage and that he had injured the children or failed to obtain medical care for them when they were injured. The mother stated that the father had dislocated James’s shoulder when the child was approximately two years old because James had an accident while being “potty trained.” The mother testified that, despite James’s constant crying, the father had left James unattended for several hours and she had had to take him to the hospital as soon as she returned from work. The mother also testified that, approximately three years before the hearing, when the father returned the children to her house after a visitation, Colton’s arm was broken. Apparently, he broke his arm while playing on a trampoline, and the father neither took Colton to the hospital nor informed the mother about his accident. The mother stated that she suspected something was amiss because, when the father returned the children, Colton was wearing a long sleeve shirt, despite the weather being very warm. According to the mother, she immediately took Col-ton to the hospital. The father did not dispute the mother’s claim that he had been physically abusive toward her during their marriage or her descriptions of either event involving the injuries of the children.

The father asserted that he was seeking the modification of James’s custody for two interrelated reasons. First, the father stated that James wanted to have his custody modified. The father testified that he was not seeking to have Colton’s custody modified because Colton had not asked him to do so. According to the father, Colton did not want to upset the mother. The father testified that, in his opinion, James and Colton had reached the appropriate level of maturity to determine where they should live. The father further stated that, if James came to live with him, he would consent to James’s returning to the mother’s custody if he decided that he wanted to return at a later date.

James’s primary reason for wanting to live with the father was because he did not like the style of discipline employed by the mother. The father was also seeking to have James’s custody modified because, he said, he was concerned about the style of discipline the mother employed when James misbehaved. The trial court heard extensive testimony regarding the mother’s disciplining James.

When James was in the 9th grade, he began experiencing disciplinary problems at school. During that year, James was reprimanded at least five times for misbehaving on the school bus, and he was actually suspended from riding the school bus twice. After his first suspension from riding the school bus, the mother warned him that if he was suspended again he would be forced to walk to and from school. After James’s second suspension, the mother informed James that he was going to walk to school, as she had warned.

For the duration of his suspension, which lasted approximately three days, James walked the approximately three miles each way to and from school. He testified that it took him approximately one hour to make the trip. He also stated that, at least once, one of his friends accompanied him on the trip “for exercise” and that one of his teachers picked him up one day and gave him a ride.

The father did not think that the mother should have made James walk to school. The father stated that he would have “just kept trying [his] best,” rather than making James walk to and from school. The mother, on the other hand, was unapologetic; she asserted that making James walk to school was an “appropriate” type of punishment for a 15-year-old child who had been suspended from riding the school bus for a second time. One of James’s teachers testified that she thought James’s walking to school was “a good idea” that would help him “learn his lesson” about acting appropriately on the school bus.

The father also took exception to the mother’s and Bishop’s paddling James when he misbehaved. The mother testified that if James acted in a manner which, in her opinion, warranted his being pad-died, she would follow a certain routine. First, James would be sent to his room, and the mother would spend approximately 15 minutes thinking about whether he deserved to be paddled; the mother asserted that she took that time to ensure that she was not acting out of anger. The mother would then enter James’s room and tell him what he had done wrong and why he was being paddled. James would then receive three strikes from the paddle and he would be made to stay in his room for another 15-minute period to think about what he had done wrong.

James corroborated the mother’s description of the routine she employed when paddling him. James stated that he sometimes received extra strikes for “moving” or for putting his hands behind his backside. He described the paddle as being wooden; the trial court characterized it as resembling a “fraternity paddle.” The evidence suggests that the same routine was followed by Bishop when he paddled James. According to James, he was pad-died for things like not cleaning his room after being repeatedly told to do so, saying “yeah” instead of “yes sir” or “yes ma’am,” being suspended from riding the school bus, or for making bad grades at school. James stated that he had not been paddled since the summer before the November 3, 2005, hearing. The mother testified that James had been paddled “less than 10 times” during his entire life; the father did not dispute that assertion. There was no evidence to suggest that the mother’s paddling James caused him to suffer any physical injury or require any medical treatment.

The father testified that be would not paddle the children and that he had not done so since they were very young. The mother, however, testified that approximately two to three years before the hearing the children had returned from the father’s house with strap marks across their legs. The mother attributed those marks to the father’s spanking the children. However, James testified that the father did not spank him.

On approximately three occasions, the mother cut James’s hair as a form of punishment. The mother cut James’s hair when James was suspended from riding the bus and when he “back talked” one of his teachers. The mother also cut James’s hair when he wrote a sexually explicit letter to one of his female classmates. According to James, the mother did not paddle him for writing the vulgar letter because he had been paddled at school for that offense.

To punish James by cutting his hair, the mother would give him a “buzz cut” with a “number two clipper.” Though he thought that his hair grew back “pretty fast,” James testified that he was “kind of embarrassed” when he arrived at school the day after his mother cut his hair for punishment. James stated, however, that his mother also cut his hair when he simply needed a haircut; for example, he testified that he had requested that the mother cut his hair for a school dance.

The father did not think that cutting James’s hair was an appropriate form of punishment. He described the mother’s doing so as “shaving” James’s head. The mother disagreed with the father’s characterization of the haircut. The mother also entered into evidence photographs of James. One of the photographs was taken approximately one week after the mother had cut James’s hair for punishment, and other photographs show James wearing his “normal” hair style; the hair styles do not appear to be drastically different. James’s teacher testified that she believed that the mother’s cutting James’s hair for punishment was appropriate.

The father also took exception to the mother’s excluding James from participating in a family event. The mother testified that, on that one occasion, she thought James did not want to participate with her family and she decided that he could not accompany the mother, Bishop, and Colton to a restaurant. James testified that the mother made the decision because he had given the mother “a dirty look.” After the trio returned from the restaurant, James approached the mother and asked to participate with the family once again, a request that the mother granted. There was no evidence indicating that James went unfed as a result of not going to the restaurant on that occasion.

The father testified that he did not believe that the mother’s choices for discipline of James, described above, were appropriate. He stated that he believed that the only appropriate form of discipline should be the “taking away of privileges” rather than the methods employed by the mother. Despite his apparent concern for the children’s safety, the father had never asked the mother to change her methods of discipline. Moreover, the father was not requesting that Colton’s custody be modified despite James’s claim that Colton was paddled more often than James.

The father admitted that most, if not all, of his information regarding the mother’s disciplining of the children and James’s school-related problems came from James. The father testified that he had not requested to see James’s report cards, had never attended a parent-teacher conference, and had never spoken with any of James’s teachers regarding any discipline problems at school involving James. The mother’s attorney called into question the completeness of the information provided to the father by James by showing him a copy of the sexually explicit letter that James had written to his female classmate; the father admitted that James’s description of the letter was “not as bad” as the actual letter. Throughout his testimony, the father stated that he deferred to the wishes of the children as to where they should live and whether they should be separated.

The mother testified that she was concerned about the choices the father made with regard to the children. The father admitted that he allowed the children to watch “R rated” movies, and he further admitted that he provided James, who was 14 years old at the time, two shirts with profane language promoting the consumption of alcohol.

It is well settled that our standard of review in cases in which the trial court considers ore tenus evidence is limited because of the presumption of correctness afforded the trial court’s judgment. Judah v. Gilmore 804 So.2d 1092, 1094 (Ala.Civ.App.2000) (citing Ex parte Murphy, 670 So.2d 51, 52 (Ala.1995)). However, when the trial court’s judgment is so unsupported by the evidence as to be plainly and palpably wrong, this court must reverse the judgment. Id. Also, “when this court is presented with an issue of law, such as the application of the correct child-custody-modification standard, we review the judgment of the trial court de novo, without affording it any presumption of correctness. Ex parte Perkins, 646 So.2d 46 (Ala.1994).” Barber v. Moore, 897 So.2d 1150, 1153 (Ala.Civ.App.2004).

“[Wjhere the parents have joint legal custody, but a previous judicial determination grants primary custody to one parent and secondary custody to the other, ‘the trial court [is] correct in applying the [Ex parte McLendon, 455 So.2d 863 (Ala.1984) ] standard and requiring the [parent] to show that a change in custody would materially promote the welfare and best interests of the child, offsetting the disruptive effect of uprooting the child.’ Blackmon v. Scott, 622 So.2d 393, 394 (Ala.Civ.App. 1993).”

Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). “[T]he preference of the child, regardless of h[is] age and maturity, is not determinative of the issue of custody but is merely a factor the trial court may consider in reaching its decision. Ezell v. Hammond, 447 So.2d 766 (Ala.Civ.App.1984).” Glover v. Singleton, 598 So.2d 995, 996 (Ala.Civ.App.1992). In Aabama, the separation of siblings is disfavored, absent a showing of compelling reasons for such a separation. See, e.g., Mardis v. Mardis, 660 So.2d 597, 599 (Ala. Civ.App.1995) (citing Jensen v. Short, 494 So.2d 90 (Ala.Civ.App.1986); Gandy v. Gandy, 370 So.2d 1016 (Ala.Civ.App.1979); and Pettis v. Pettis, 334 So.2d 913 (Ala. Civ.App.1976)).

It is undisputed that the trial court was bound to apply the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984). As such, before the trial court could modify James’s custody, it had to conclude, based on the evidence presented, that the modification would materially promote his welfare and best interest so as to offset the inherent disruption that would be caused by his leaving the mother’s house, moving into the father’s house, being separated from Colton, and changing schools. See Scholl v. Parsons, supra.

The mother argues on appeal that the trial court exceeded its discretion by modifying custody of James. We agree.

The trial court heard undisputed testimony that the father injured James when he was young, attempted to conceal Col-ton’s broken arm, and abused the mother during their marriage. The trial court also heard undisputed testimony that the father had never been involved with James’s school work and had never performed any parental duties such as taking James to the doctor or helping him with his homework. The father admitted that he did not know the names of James’s teachers or doctors and that he had never been to a parent-teacher conference or requested to see James’s report card. The father testified that he sometimes missed visitation with the children and that he did not call or visit James on his birthday or give him a birthday present. The trial court also heard undisputed testimony that the father had failed to maintain life insurance for the benefit of the children and that he was sometimes late with his child-support payments.

Despite the evidence regarding the father, the trial court appears to have based its decision to modify James’s custody solely on its findings regarding the mother’s disciplining of James. We readily acknowledge that the trial court was in the best position to evaluate the credibility of the witnesses. See Fell v. Fell, 869 So.2d 486, 494 (Ala.Civ.App.2003) (noting that the trial court is in the unique position to directly observe the witnesses and to assess their demeanor and credibility). Although it was certainly within the province of the trial court to determine the credibility of the witnesses and to shape its judgment accordingly, that judgment must be supported by the evidence. See Judah v. Gilmore, supra.

Other than the father’s opining that “I feel [James] is being abused,” no witness testified that James had suffered any physical abuse at the hands of the mother. Neither James, the father, the mother, nor James’s teacher testified in a manner to suggest that James had ever been physically harmed by the mother. However, the trial court concluded that the mother’s paddling James was “physically ... damaging [to him].”

James testified outside of the hearing of the mother and the father, and the trial court questioned him extensively; he spent considerable time describing the mother’s paddling him. At no time did he testify to suffering pain or being injured. The trial court found that James received “repeated and severe whippings.” The only evidence relating to the frequency of the paddlings came from the mother’s testimony that James had received “less than 10” pad-dlings during his entire life. The trial court heard no testimony relating to the severity or degree of the paddlings James received.

The only evidence relating to the mother’s or Bishop’s state of mind at the time they administered a paddling was the testimony that they took several minutes to think about whether James deserved, in their minds, to be paddled and to ensure that they were not acting out of anger. The father offered no evidence to suggest otherwise, and James’s description of the paddlings corroborated the mother’s version of the routine that she and Bishop employed. Though the trial court found that routine to be a “terrifying sequence of events,” there was no evidence indicating that James was frightened by any aspect of that disciplinary routine.

The trial court also heard testimony from James that the mother did not paddle him every time he did something wrong. James stated that the mother did not paddle him after he wrote the sexually explicit letter to his female classmate because he had been paddled at his school for the offense. The trial court’s conclusion that James was suffering from physical abuse at the hands of the mother was unsupported by the evidence.

Likewise, the trial court found that James was suffering emotional harm because of the mother’s disciplinary style. The trial court found that James suffered “humiliation” as a result of the mother’s cutting his hair for punishment. The only testimony regarding the emotional toll exacted by the mother’s discipline on James was James’s statement that he was “kind of embarrassed” after his mother cut his hair.

James also testified that he sometimes asked his mother to cut his hair. James stated that he “wanted to look really neat” for an upcoming school dance so he had asked his mother to cut his hair. A photograph entered into evidence taken at that dance and another photograph taken approximately one week after his mother cut his hair for punishment reflect that his hair style was substantially similar at each time. The trial court’s conclusion that James was suffering emotional harm as a result of the mother’s disciplining him by cutting his hair was not supported by the evidence.

Also, in concluding that James was suffering emotional abuse in the mother’s home, the trial court noted that James “testified that he was terrified of [Bishop].” The record is simply devoid of any evidence to support that finding. Only the trial court questioned James about his feelings toward Bishop. That conversation was as follows:

“TRIAL COURT: Would it be fair to say that you’re afraid of Randall Bishop?
“JAMES: I’m not really afraid of him.
“TRIAL COURT: Just sometimes?
“JAMES: Sometimes. Yes, ma’am.”

Though the mother stated that the relationship between James and Bishop was satisfactory, James implied that he did not like Bishop. At no point, however, did James describe being terrified of Bishop. The trial court’s conclusion that James was “terrified” of Bishop was not supported by the evidence.

James testified about his social life, and that testimony suggested that he is nothing but a well-adjusted, socially involved young man. The mother testified that, in her opinion, James was “friends with everybody in the whole school.” Further, James’s teacher described him as being a “very polite” and likeable student.

Again, we note that the trial court was free to gauge the credibility of the witnesses and the evidence they presented and to shape its judgment accordingly. See Ex parte Murphy, supra; Judah v. Gilmore, supra. Although some of the members of this court may not agree with all of the mother’s disciplinary methods, the evidence simply does not support the trial court’s ultimate conclusion that the mother’s disciplining of James was “reprehensible and sadistic.” The evidence in the record, taken together with the evidence regarding the father, does not support the factual findings on which the trial court based its judgment; therefore, that judgment is due to be reversed.

REVERSED AND REMANDED.

PITTMAN and BRYAN, JJ., concur.

CRAWLEY, P.J., concurs specially, with writing.

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

CRAWLEY, Presiding Judge,

concurring specially.

I concur specially to make two points. First, although the main opinion — like many prior opinions of this court, including some authored by me — refers to the father’s pleading as a “petition to modify custody,” I note that the Alabama Rules of Civil Procedure do not provide for a pleading entitled a “petition.” See Rule 7, Ala. R. Civ. P.

Second, in the final paragraph the main opinion states: “Although some of the members of this court may not agree with all of the mother’s disciplinary methods, the evidence simply does not support the trial court’s ultimate conclusion that the mother’s disciplining James was ‘reprehensible and sadistic.’ ” 949 So.2d at 168. I take issue with the introductory clause of that sentence.