author: THOMPSON, Presiding Judge.

text:
    Lori B. ARNOLD v. Joseph R. ARNOLD Joseph R. Arnold v. Lori B. Arnold.
    2051015.
    Court of Civil Appeals of Alabama.
    July 13, 2007.

      J. Cliff Heard of Benkwith & Heard, P.C., Montgomery, for appellant/cross-ap-pellee Lori B. Arnold.
    Johnnie Smith, Montgomery, for appel-lee/cross-appellant Joseph R. Arnold.
   THOMPSON, Presiding Judge.

On September 28, 2005, Joseph R. Arnold (“the husband”) filed a complaint seeking a divorce from Lori B. Arnold (“the wife”). The wife answered and counterclaimed for a divorce; the wife also sought custody of the parties’ minor child. In their complaints, the parties each alleged that they had had a common-law marriage before their April 5, 1996, marriage ceremony. Both parties later disputed the length of that purported common-law marriage.

During the pendency of this matter, the parties stipulated as to a number of issues, including the award of custody of the child to the wife and other issues pertaining to the child. Thereafter, the trial court conducted a hearing at which it received ore tenus evidence. On May 16, 2006, the trial court entered a divorce judgment incorporating the parties’ stipulations and resolving the issues upon which the parties’ had failed to reach an agreement. The divorce judgment divided the parties property and, among other things, awarded the wife “temporary alimony” of $400 per month for one year. In addition, the trial court ordered the husband to pay $709.12 per month in child support, awarded the husband the right to claim the child as a dependent for income-tax purposes, and required the husband to provide health insurance for the benefit of the child.

The wife filed a postjudgment motion, and the husband filed an opposition to that motion and a “counter” postjudgment motion. On July 24, 2006, the trial court entered a postjudgment order altering the alimony provision of the divorce judgment to award the wife $750 per month in alimony for a period of three years. The wife timely appealed, and the husband timely cross-appealed.

The parties were first married in 1991, and they divorced in 1993. The parties resumed and then ended their romantic relationship several times after their divorce. The wife became pregnant with the parties’ child in 1995, and the child was born on March 20, 1996. The parties’ second marriage ceremony took place on April 5,1996.

Much of the parties’ testimony was dedicated to their dispute regarding the length of their purported common-law marriage. The wife attempted to demonstrate that the parties had been common-law married before September 1995, approximately seven months before their ceremonial marriage. The husband maintained that the parties’ common-law marriage that preceded their ceremonial marriage dated back only to March 20, 1996, the date the parties’ child was born.

The parties each submitted a CS-41 child-support income affidavit as required by Rule 32, Ala. R. Jud. Admin. The wife’s CS^tl form indicated that her monthly gross income was $2,332.88. We note that in her testimony the wife answered in the affirmative the question whether her income affidavit indicated that she earned $2,339 per month. The reason for the slight discrepancy in the evidence regarding the wife’s gross monthly income is not explained in the record on appeal.

The parties disputed the amount of the husband’s income. The husband submitted a CS^fl form indicating that his gross monthly income from his employment with the Federal Aviation Administration was $8,413; that amount corresponds to the amount of the husband’s 2006 “base” salary. The wife presented evidence indicating that the husband has consistently received income in excess of his base salary. The husband referred to the income he received in addition to his base salary as “differential” income. The wife presented evidence indicating that the husband earned an average of approximately $540 per month in differential income in 2004, approximately $630 per month in differential income in 2005, and approximately $1,500 per month in differential income for 2006 to the date of the May 2006 hearing.

The husband offered his testimony that he believed his differential income might decrease or end in the future. The wife objected to that testimony as speculative, but the trial court overruled her objection. Thereafter, the husband testified:

“[I]f Congress has it before them and if it is the last best offer from the [Federal Aviation Administration] then we will start to lose part of our differentials, the premium pays that we get on top of the flat salary will be reduced as well and if we are ever combined to another facility we stand a chance to take a possible significant drop in pay.”

The parties also presented evidence indicating that the cost of after-school care for the child was $42 per week and that the husband typically paid that obligation to the child-care facility. The husband testified that the cost of providing the family or dependent health-insurance coverage available through his employer was $135.59 biweekly.

In calculating child support, the trial court determined the husband’s gross monthly income to be $8,413, and the wife’s gross monthly income to be $2,332.88, for a total combined gross monthly income, as determined by the trial court, of $10,745.88. Thus, the parties’ combined gross monthly income exceeds the uppermost limit of the Rule 32, Ala. R. Jud. Admin., schedule for calculating basic child-support obligations. Although the parties’ combined gross monthly income exceeded the uppermost limit of the child-support schedule contained in Rule 32, Ala. R. Jud. Admin., the trial court calculated child support by applying the basic child-support obligation found in the child-support schedule for parents with a combined monthly income of $10,000. Additionally, the trial court included the cost of health insurance into its calculation of the husband’s child-support obligation, but it did not include the cost of the child’s after-school care.

In her appeal, the wife argues, among other things, that the trial court erred in allowing the husband’s testimony, which is quoted earlier in this opinion, that his differential pay might decrease in the future. “The trial court’s decision to admit the testimony will not be disturbed on appeal except for an abuse of discretion.” Attalla Golf & Country Club, Inc. v. Harris 601 So.2d 965, 969 (Ala.1992). In his testimony, the husband indicated that if certain actions occurred as a result of Congressional debate, there was a possibility that his differential pay could be affected. Although we agree with the wife that the husband’s testimony on the issue of his differential pay was speculative, we do not necessarily agree that the testimony was inadmissible. Accordingly, we cannot say that the trial court erred in admitting the testimony.

However, the speculative nature of the husband’s testimony regarding his differential pay does affect the weight that testimony should be afforded. It is clear that the trial court relied on the husband’s testimony regarding his differential pay in determining the husband’s gross monthly income because the trial court failed to include any amount of differential pay in determining the husband’s gross monthly income. For the purpose of determining child support, “gross income” is defined as

“income from any source, [which] includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interests, trusts, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and preexisting periodic alimony.”

Rule 32(B)(2)(a), Ala. R. Jud. Admin. Consistent with that definition, this court has held that “the trial court must take into account all sources of income of the parents when computing support obligations.” Massey v. Massey, 706 So.2d 1272, 1274 (Ala.Civ.App.1997) (emphasis added). Income such as the husband’s differential pay, “to the extent that such income is sufficiently substantial and continuing[ ] and ... can be accurately determined,” must be included in determining a party’s gross income for the purposes of determining child support. State ex rel. Smith v. Smith, 631 So.2d 252, 255 (Ala.Civ.App.1993). The trial court does not have the discretion to disregard a source of income in determining a parent’s gross monthly income for the purposes of determining child support. Massey v. Massey, supra; Rogers v. Sims, 671 So.2d 714, 716 (Ala.Civ.Ápp.1995).

In Simmons v. Simmons, 600 So.2d 305, 306 (Ala.Civ.App.1992), this court reversed a judgment modifying child support when the father had presented evidence indicating that his income would decrease in the future. In that case, the father had presented a memorandum from his employer indicating that, at some point in the future, the employer would no longer offer the opportunity to earn overtime pay. Based on that evidence, the trial court reduced the father’s child-support obligation. This court concluded that the modification judgment was “based on a mere supposition that the father’s income ‘may’ be decreased at a future date.” Simmons v. Simmons, 600 So.2d at 306.

In this case, the record indicates that the husband earned substantial differential pay in the years preceding the hearing in this matter. The husband testified that, assuming certain contingencies occurred, his income from differential pay might decrease in the. future. The husband presented no evidence indicating that at the time of the hearing any of those contingencies had occurred or that his income, including differential pay, had in fact decreased.

The husband’s differential pay constitutes income that must be included in a determination of his gross income. See Rule 32(B)(2)(a), Ala. R. Jud. Admin.; Massey v. Massey, supra. The husband’s testimony that his differential pay might decrease in the future was speculative in nature; that testimony constituted “mere supposition” that his income “might” be reduced in the future. See Simmons v. Simmons, 600 So.2d at 306- We conclude that the trial court’s failure to consider the husband’s differential pay in determining the husband’s gross monthly income for the purpose of calculating child support constituted an abuse of the trial court’s discretion. State ex rel. Smith v. Smith, supra. Accordingly, we reverse the trial court’s judgment as to child support and remand the case for the trial court to properly determine the husband’s gross income and to establish an appropriate award of child support. Stinson v. Stinson, 729 So.2d 864, 866 (Ala.Civ.App.1998) (“Because the trial court did not include the father’s bonuses as income in calculating the father’s child support obligation, we must reverse the judgment and remand the cause for a recomputation of the amount of child support due ... when all of the father’s income is counted.”); State ex rel. Smith v. Smith, supra.

With regard to the issue of child-support, the wife also asserts that the trial court erred in failing to include in its child-support calculations the cost of after-school care for the child. See Rule 32(B)(8), Ala. R. Jud. Admin. (“Child care costs ... shall be added to the ‘basic child support obligation.’ ” (emphasis added)). The wife also argues that the trial court erred in including in its calculation of child support the entire cost of the health-insurance premium the husband pays for dependent or family health-insurance coverage. She contends that only the difference between the cost of dependent coverage and the cost of insuring the husband alone should be included in the determination of the husband’s child-support obligation. In making that argument, the wife advocates the reversal of caselaw precedent that has interpreted the child-support guidelines as requiring the inclusion of the total cost of the insurance premium for family or dependent coverage. See, e.g., Marshall v. Marshall, 891 So.2d 883 (Ala.Civ.App.2004); Fell v. Fell, 869 So.2d 486 (Ala.Civ. App.2003); and Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998). For the following reasons, however, we do not reach those issues.

The manner in which the trial court reached its child-support determination in this case is unusual. Although the parties’ combined gross monthly income exceeded the uppermost limit of the Rule 32 child-support guidelines schedule, the trial court utilized that schedule as if the parties’ combined income did not exceed its limit. As already discussed in this opinion, we are reversing the trial court’s judgment as to child support based on its failure to include the husband’s differential pay in its determination of his gross income. On remand, when the trial court includes the husband’s differential pay in determining the husband’s gross income, the parties’ combined gross monthly income will exceed the $10,000 uppermost limit of the child-support schedule by a greater amount than originally determined by the trial court.

The Comment to Rule 32 states that “[wjhere the combined adjusted gross income exceeds the uppermost limit of the schedule, the amount of child support should not be extrapolated from the figures given in the schedule, but should be left to the discretion of the court.” When the parties’ combined income exceeds the uppermost limit of the child-support schedule, the determination of a child-support obligation is within the trial court’s discretion. Floyd v. Abercrombie, 816 So.2d 1051, 1057 (Ala.Civ.App.2001); Dyas v. Dyas, 683 So.2d 971 (Ala.Civ.App.1995). “[A] trial court’s discretion is not unbridled and ... the amount of child support awarded must relate to the reasonable and necessary needs of the children as well as to the ability of the obligor to pay for those needs.” Dyas v. Dyas, 683 So.2d at 973.

In this case, the parties’ combined gross monthly income renders the utilization of the child-support schedule inappropriate. See Comment, Rule 32, supra. Therefore, on remand, in determining the husband’s child-support obligation, the trial court is to consider the needs of the child and the parents’ ability to pay in determining child support. Dyas v. Dyas, supra. The cost of health insurance and after-school care are certainly factors for the trial court to consider in determining an appropriate level of child support even when the child-support schedule does not govern the child-support determination.

With regard to the issue of child support, the wife also contends that the trial court erred in including in its judgment a provision requiring the parties to be equally responsible for the cost of any noncovered medical expenses for the child. The wife argues that the parties’ stipulations included a provision requiring the husband to pay 80% of the noncovered medical expenses for the child. The trial court’s divorce judgment specifically states that it incorporated the parties’ stipulations. Accordingly, the two provisions in the divorce judgment pertaining to noncov-ered medical expenses conflict. On remand, the trial court is instructed to resolve that conflict. See Hall v. Hall, 895 So.2d 299, 305 (Ala.Civ.App.2004) (reversing a judgment that contained inconsistent provisions for a clarification of the trial court’s intent); Shipp v. Shipp, 435 So.2d 1298, 1299 (Ala.Civ.App.1983) (concluding a provision of a judgment was ambiguous and reversing “because of the uncertainty of the intent” of that provision).

The wife also argues that the trial court erred in awarding the dependency deduction for income-tax purposes to the husband rather than to her. Because we are reversing the judgment as to child support on other grounds and remanding this case for the trial court -to recalculate child support, we need not resolve whether the award of the income-tax deduction to the husband^ was also error. The award of the income-tax dependency deduction is one of the factors the trial court must consider in fashioning a child-support award on remand.

In his cross-appeal of the trial court’s divorce judgment, the husband challenges the trial court’s award of periodic alimony to the wife. The husband asserts several arguments with regard to the issue of the award of alimony. However, at least two of those arguments are not properly supported by citations to authority, and, therefore, we decline to address them. McLemore v. Fleming, 604 So.2d 353 (Ala.1992).

The husband properly supported Ms argument that the trial court improperly considered his retirement benefits as a source of income in ordering him to pay periodic alimony. Section 30 — 2—51(b), Ala. Code 1975, allows a' trial court to consider a spouse’s retirement benefits as part of that spouse’s estate in fashioning a property division pursuant to a divorce. However, § 30 — 2—51(b)(1) limits the consideration of those retirement benefits as an asset possibly subject to division to situations in which the parties were married for at least a period of 10 years. This court has held that “the most workable and fair interpretation of § 30-2-51(b) is that the duration of the parties’ marriage should be measured by the date of the filing of the complaint for divorce.” Smith v. Smith, 836 So.2d 893, 900 (Ala.Civ.App.2002).

In this case, the parties’ marriage ceremony occurred in April 1996, approximately nine and a half years before the time the husband filed his complaint seeking a divorce. The parties each asserted that they had been common-law married before their April 5, 1996, marriage ceremony. In order to support her claim for the division of the husband’s retirement benefits, the wife attempted to demonstrate that the parties had been common-law married before September 1995 in order to establish that the parties had been married for 10 years at the time the husband filed his September 2005 complaint for a divorce. As previously mentioned, the husband contended that the parties had been common-law married for only a few weeks before their ceremonial marriage.

“[TJhere are common elements which must be present, either explicitly expressed or implicitly inferred from the circumstances, in order for a common-law marriage to exist. Those elements are: 1) capacity, 2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and 3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation.” Boswell v. Boswell, 497 So.2d 479, 480 (Ala.1986). Neither party in this case presented any evidence regarding the third element, that of public recognition of the purported common-law marriage. We presume that the trial court disregarded the length of any purported common-law marriage between the parties in determining the length of the parties’ marriage. Ex parte Atchley, 936 So.2d 513, 516 (Ala.2006) (“We presume that trial court judges know and follow the law.”). Accordingly, at least with regard to this most-recent marriage, the retirement benefits of the parties are not subject to division in this divorce.

The husband insists that in spite of the fact that the parties were not married long enough to implicate the provisions of § 30-2-51, the trial court considered his retirement benefits in awarding periodic alimony to the wife. The husband asserts that the wife argued in her postjudgment motion that his retirement benefits were subject to division, and that, in its postjudgment order, the trial court increased the award of periodic alimony. We conclude, however, that the husband has failed to demonstrate error with regard to this issue.

The husband relies on Smith v. Smith, 866 So.2d 588 (Ala.Civ.App.2003) (Crawley, J., with four judges concurring in the result), in which this court concluded that a retirement account may not be considered as a source of income from which to pay periodic alimony if the retirement-account holder is not currently receiving benefits from that account. In remanding the case to the trial court to reconsider its alimony award to ensure that that award was consistent with the foregoing, the lead opinion instructed the trial court as follows:

“If the court determines that the wife needs support from the husband and that the husband is able to pay such support from his current income, then it may award the wife alimony. The court may not, however, consider the husband’s retirement accounts as sources of income from which to pay periodic alimony.”

Smith v. Smith, 866 So.2d at 592-93.

In this case, the record does not indicate that the trial court considered the husband’s retirement benefits in modifying the award of periodic alimony to the wife, and the wife made other arguments in support of her contention that the periodic-alimony award should be increased. It is clear that the parties were not married for the requisite number of years to implicate the application of § 30-2-51 (b), and the trial court is presumed to know the law. Ex parte Atchley, supra; Carter v. Carter, 666 So.2d 28 (Ala.Civ.App.1995). The trial court could have reconsidered its property division and alimony award in light of the other arguments asserted by the wife.

The issues of property division and alimony must be considered together. “ ‘[A] property division and the [award of] periodic alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue.’ ” Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995) (quoting Montgomery v. Montgomery, 519 So.2d 525, 526 (Ala.Civ.App.1987)). See also Ex parte Foley, 864 So.2d 1094, 1097 (Ala.2003); Pate v. Pate, 849 So.2d 972, 976 (Ala.Civ.App.2002); and Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993). The husband has made no argument to this court with regard to the property division and alimony award as a whole. In other words, the husband has not attempted to demonstrate that the only manner in which the trial court could have equitably awarded the wife additional periodic alimony was if it had considered the husband’s retirement benefits. The husband has failed to demonstrate error with regard to this issue.

The other issue the husband properly raises in his brief on appeal pertains to his assertion that the award of an attorney fee to the wife’s attorney was excessive. “It is well settled that the award of an attorney fee in a divorce action is a matter within the sound discretion of the trial court.” Walls v. Walls, 860 So.2d 352, 359 (Ala.Civ.App.2003).

“In arriving at the value of the legal services the trial court may properly consider the following: (1) the nature and value of the subject matter of employment; (2) the learning, skill and labor necessary to the proper discharge of that employment; (3) the time consumed on the matter in dispute; (4) the professional ability, experience and reputation of the party performing the services; (5) the weight of his responsibility; (6) the measure of success achieved; (7) any reasonable expenses incurred in the representation of a client; and (8) the fee customarily charged in the locality for similar legal services. ABA Code of Professional Responsibility, DR 2-106(B) (1972). Moreover, the trial court in determining a reasonable attorney’s fee may, along with the opinion evidence of experts on the subject of fees, rely on its own knowledge and experience as to the value of the services performed. Burgess v. Burgess, 54 Ala.App. 396, 309 So.2d 107 (1974). Likewise, the earning capacity of the parties may also be deemed a matter for consideration in establishing the amount of money an attorney is entitled to for his services. Burgess v. Burgess, supra.
“As a general rule the amount of [an] attorney’s fee to be awarded always rests within the sound discretion of the trial court and the court’s judgment as to the amount of the attorney’s fee will not be reversed by this court unless it is clearly shown that the trial court abused its discretion. Burgess v. Burgess, supra.”

Rosser v. Rosser, 355 So.2d 717, 721 (Ala.Civ.App.1977).

In this case, the wife’s attorney submitted an affidavit detailing his activity on behalf of the wife; that affidavit indicated that until the date of trial, the attorney had worked on the case for 28.45 hours at a rate of $200 per hour, which results in a total fee, without considering the time spent at the hearing, of $5,690. In addition, the attorney presented evidence indicating that he had expended approximately $400 in obtaining a copy of the husband’s deposition. Although it is clear that the hearing in this matter was conducted in less than one day, the record does not indicate the exact length of the hearing; in his response to the wife’s postjudgment motion, and again in his brief on appeal, the husband asserted that the hearing lasted “only a matter of hours.” In its judgment, the trial court awarded the wife’s attorney an attorney fee in the amount of $5,000.

In arguing that the attorney-fee award was excessive, the husband contends that the parties entered into a partial settlement agreement with regard to some issues and that the wife needlessly complicated the litigation with her claim seeking an award of his retirement benefits based on her common-law marriage argument. However, the fact that a party does not prevail on a claim or argument does not necessarily render it meritless. Further, the trial court had before it the attorney’s affidavit setting forth the explanations of the legal work performed on behalf of the wife. The trial court did not award the attorney the full amount of the fee requested. “The trial court is given much discretion in determining an appropriate award of attorney fees because of its ‘own knowledge and experience as to the value of the legal services performed.’ ” Creel v. Creel, 871 So.2d 827, 830 (Ala.Civ.App.2002)(quoting Hammond v. Hammond, 500 So.2d 27, 29 (Ala.Civ.App. 1986)); Rosser v. Rosser, supra. Given the discretion afforded the trial court and the facts of this case, we cannot say that the trial court erred in reaching its attorney-fee award.

We reverse that part of the trial court’s judgment pertaining to child support, and, on remand, the trial court is instructed to enter a child-support determination consistent with the principles set forth in this opinion. The judgment is affirmed with regard to the issues raised in the husband’s cross-appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

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

BRYAN, J., dissents, without writing.

      . It is not clear who prepared the CS-42 child-support guidelines form contained in the record on appeal. However, because it is clear that the trial court used the amount indicated on that form as its child-support determination, we refer to the form as being completed by the trial court.

      . The wife makes no argument that the length of the parties' first marriage should be included in determining whether she can assert a claim under § 3 0-2-51(b), and this court does not address that issue.

      . The wife also contended that the initial award of alimony demonstrated that the trial court agreed with her that the husband could pay, and that she needed, periodic alimony; that the amount of alimony awarded was insufficient to assist her in meeting her monthly expenses; and that the husband had and could increase his ability to pay alimony by decreasing the amount of his monthly voluntary contributions to his retirement account.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Teresa H. NEELEY v. GATEWAY, INC.
    2050928.
    Court of Civil Appeals of Alabama.
    July 20, 2007.

      Earl E. Cloud, Jr., Huntsville, for appellant.
    Walter A. Dodgen and William R. Luns-ford of Baleh & Bingham, LLP, Huntsville, for appellee.
   THOMAS, Judge.

Teresa H. Neeley sued Gateway, Inc., and Arnold Knott, alleging claims of negligence and wantonness. Neeley asserted that, on July 29, 2002, she was a customer in the Gateway computer store when Knott, another customer in the store, forcefully opened a door whose handle struck her lower back and caused her to be injured. The trial court entered a summary judgment in favor of Gateway and made that judgment final pursuant to Rule 54(b), Ala. R. Civ. P. Neeley subsequently settled and dismissed her claims against Knott.

Neeley filed a timely postjudgment motion that was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Neeley timely appealed to the Alabama Supreme Court, which transferred the case to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The facts of this case are undisputed. Neeley and her husband were in the Gateway store to pick up their computer after it had been repaired. Neeley was standing at the counter of the service area waiting to speak to a service technician when a door to her immediate left swung open. The door handle struck Neeley forcefully in the small of her back and she was knocked against the counter. Neeley cried out in pain and collapsed on the floor. Her husband assisted her to a nearby bench where she rested awhile and was later contacted by the store manager. When her pain did not abate, Neeley was taken by ambulance to a local hospital, where she was treated and released with a prescription for pain medication. X-rays of her back indicated no injury or trauma to the back.

Knott, a Gateway customer who was bringing his computer in for repairs, had arrived at the store a few minutes before Neeley and had parked his vehicle in the fire lane in front of the store. A Gateway employee retrieved Knott’s computer from the vehicle and carried it into the sales lobby of the store, followed by Knott. Knott and the employee then entered the service area of the store. According to Neeley’s affidavit, Knott was

“speaking loudly and sounded to be irritated in his conversation with the employee of Gateway. During this time, [Neeley] was facing an opposite direction, and engaged in a conversation with a Gateway employee, and could only hear the volume and irritated tone of Mr. Knott’s voice.”

The Gateway employee said to Knott, “Let me go check on your computer and I’ll be right back,” after which the employee opened the door near Neeley and walked out. The door did not strike Neeley. As the door was closing, Knott grabbed the door and forcefully swung it open, at which time the door handle struck Neeley. Knott said that he had not seen Neeley standing there. He also stated that the door had no stop or control to check its swing and to prevent it from hitting Nee-ley.

The door that struck Neeley provided Gateway employees with ingress and egress to the “parts” area of the store. The door was a different color from the surrounding walls. It had a chrome lever-style knob and it swung from left to right towards the service counter when it was opened. The placement and configuration of the door were in compliance with the applicable provisions of the Standard Building Code, which did not require either that the door be marked with any sign or notice or that the door be equipped with any type of stop or control to check its swing. There was no evidence indicating that anyone other than Neeley had ever been struck when the door was opened. Neeley acknowledged that the door was not hidden, that it could clearly be seen by the customers of the store, and that she, in fact, had seen it before she was struck.

At the time she was hit by the door, Neeley had had three previous back surgeries and was permanently disabled. Neeley alleged that being hit by the door had injured the SI disk in her spine. However, her treating physician concluded, after reviewing a postaccident MRI and comparing it to a pre-accident MRI, that there was no change in that section of Neeley’s spine.

Standard of Review

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[SJubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see § 12-21-12(d), Ala.Code 1975.

I.

It is undisputed that Neeley was an invitee of Gateway. “ ‘Generally, a patron of a business ... is an invitee.’ ” Ex parte Kraatz, 775 So.2d 801, 803 (Ala.2000) (quoting Raspilair v. Bruno’s Food Stores, Inc., 514 So.2d 1022, 1023 (Ala.1987)). “ ‘An invitor’s duty to an invitee is to keep his premises in a reasonably safe condition, and, if the premises are unsafe, to warn of hidden defects and dangers that are known to it, but that are unknown or hidden to the invitee.’ ” Id. (quoting Raspilair, 514 So.2d at 1024). See generally McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 959 (Ala.1992).

Citing cases for the proposition that an invitor owes an invitee a duty to warn of hidden defects, Neeley argues that the position and configuration of the door in relation to the position of the service counter constituted a hidden defect that presented a potential danger of which a business invitee would not be aware. Accordingly, Neeley says, Gateway had a duty to warn her that standing at the service counter would place her directly in the path of the door when it was being opened.

Gateway responds to that argument by citing Waits v. Crown Dodge Chrysler Plymouth, Inc., 770 So.2d 618, 619 (Ala.Civ.App.1999), for the proposition that a door, in order to constitute a hidden defect, must be “camouflaged,” “concealed,” or “totally undetected by a person.” Gateway maintains that, under that test, the door was not a hidden defect because it was neither camouflaged nor concealed and because Neeley admitted that she had seen the door before Knott opened it. We conclude that Waits is of little or no assistance in deciding the issue Neeley raises.

First, the issue in Waits was not whether a door was a hidden defect, but whether a door threshold, which was similar in color to the surrounding floor and raised approximately an inch above the floor, was a hidden defect. Second, Neeley does not argue that the hidden defect was the door itself; she insists that the hidden defect was the position of the door in relation to the service counter, such that a customer standing at the service counter — where a customer would be expected to be — is in the path of the door when the door is being opened.

Although similar issues have been decided in a variety of ways in other jurisdictions, see Jay M. Zitter, Annotation, Liability of Building Owner or Operator for Injury Resulting from Nonautomatic Swinging Door, 6 A.L.R.6th 1 (2005), we need not decide whether the position of the door in relation to the position of the service counter constituted a hidden defect or a dangerous condition because we conclude that, even if a defective or dangerous condition existed, (1) Gateway had no actual notice of the defect or danger and (2) any constructive notice that Gateway might have had about the potential danger of a door opening onto a customer was equally shared by Neeley.

“ ‘The basis of the inviter’s liability for injuries sustained by the invitee on the premises rests on the [inviter’s] superior knowledge of the danger, and, as a general rule, he is not liable for an injury to an invitee resulting from a danger which was known to the invitee or which was obvious or should have been observed by the invitee in the exercise of reasonable care, or from a condition which was as well known or as obvious to the invitee as to the inviter, or from a danger which the invitee should reasonably have appreciated before exposing himself to it, or which the inviter had no reason to believe would not be discovered by the invitee.’ ”

Gray v. Mobile Greyhound Park, Ltd., 370 So.2d 1384, 1388 (Ala.1979) (quoting 65 C.J.S. Negligence § 63(53)) (emphasis added). An invitor has a duty to warn an invitee of hidden defects or dangers “ ‘that are known to it, but that are unknown or hidden to the invitee.’ Ex parte Kraatz, 775 So.2d at 803 (emphasis added).

Gateway made a prima facie showing, that it had no “superior knowledge” of the alleged danger presented by the relative positions of the door and the service counter. The record contains no evidence indicating that anyone standing at the service counter had ever been struck by the door while it was being opened before. The record demonstrates that when the Gateway employee who was assisting Knott opened the door, the door did not strike Neeley. It was only when Knott “grabbed” the door as it was closing and forcefully swung it open that the door struck Neeley. Cf. Covington v. S.H. Kress & Co., 102 Ga.App. 204, 205-06, 115 S.E.2d 621, 622-23 (1960):

“[T]he violent and forcible opening of the door [by another customer of the store] so as to hurl the plaintiff [a customer of the store] down the stairway was the sole proximate cause of her injuries. No facts are alleged which show that such danger was apparent or reasonably anticipatable [by the store owner]. Since the petition shows on its face that the negligence of [the store owner], if any, was not the proximate cause of the plaintiffs injuries, and since no circumstances are alleged which create a duty on the part of the [store owner] to interfere so as to prevent probable injury from the conduct of another customer, the court did not err in sustaining the general demurrer and dismissing the petition.”

See also Paine v. Armour & Co., 194 Mass. 334, 336-37, 80 N.E. 500, 500 (1907) (holding that if the “violent motion of the door [that struck the plaintiff customer] was due to the impetuosity of the person who opened it ... [then] the person who opened the door failed to exercise proper care to see that no one was injured”).

We hold that Neeley failed to rebut with substantial evidence Gateway’s prima facie showing that it had no superior knowledge of the alleged danger. See Lopez v. Louisiana Health Care Auth., 721 So.2d 518 (La.Ct.App.1998). In Lopez, a detoxification-unit patient sued the hospital, alleging that it was vicariously liable for the alleged injuries suffered by the patient when a nurse opened a door leading into a hallway where the patient was standing while waiting to be escorted outside for a smoking break. The patient, who had been leaning against a wall behind the door, was struck in the forehead when the nurse opened the door. The trial court entered a judgment of involuntary dismissal at the close of the patient’s case, and the appellate court affirmed that judgment.

The Louisiana appellate , court stated that the patient’s burden of proof in a premises-Jiability case against a public entity was to establish the entity’s .“actual or constructive notice of the defect which caused the damage prior to the occurrence, and that the entity had had a reasonable opportunity to remedy the defect but failed to do so.” 721 So.2d at 524. The court held:

“[T]he plaintiff ... failed to show prior accidents involving this particular door which would have put the hospital on notice that the door was defective .or required a warning.”

Id. Similarly, in the present case, Neeley failed to show any prior accidents-involving the door that would have put Gateway on notice that the door was defective or required a warning.

In addition, we hold that the potential for one who was standing at the service counter to be struck when the door nearby was opened was as obvious to Neeley as it was to Gateway. Cf. Callaghan v. R.H. White Co., 303 Mass. 413, 415, 22 N.E.2d 10, 12 (1939):

“It must have been obvious to the plaintiff [customer] that the doors would be opened and closed by customers of the store without supervision by employees of the defendant [store]. The defendant was not obliged to make different arrangements as to the use of the doors since the conditions were open and obvious to an ordinarily intelligent person, and the defendant would not be liable for an injury due solely to the negligence of other customers in the operation of the doors.”

(Citations omitted.) Because Neeley did not rebut Gateway’s prima facie showing that it had no superior knowledge of the allegedly defective or dangerous condition in its store, the trial court correctly entered a summary judgment in favor of Gateway.

II.

Neeley next argues that the doctrine of res ipsa loquitur, when applied to the facts of this case, creates a question of fact as to Gateway’s negligence. Our supreme court, however, has consistently held that res ipsa loquitur does not apply to premises-liability claims. See Kmart Corp. v. Bassett, 769 So.2d 282, 286 n. 4 (Ala.2000). “ ‘The owner of a premises ... is not an insurer of the safety of his invitees ... and the principle of res ipsa loqui-tur is not applicable. There is no presumption of negligence which arises from the mere fact of an injury to an invitee.’ Tice v. Tice, 361 So.2d 1051, 1052 (Ala.1978).” Ex parte Harold L. Martin Distrib. Co., 769 So.2d 313, 314 (Ala.2000).

The judgment of the Madison Circuit Court is affirmed.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.


author: BRYAN, Judge.

text:
    Nevada EASLEY v. HUNTSVILLE-MADISON COUNTY PUBLIC LIBRARY.
    2051034.
    Court of Civil Appeals of Alabama.
    July 20, 2007.

      Jeffrey G. Blackwell of Hornsby, Watson, Hornsby, Blackwell & McKown, Huntsville, for appellant.
    Joseph H. Driver and Sean C. Pierce of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for appellee.
   BRYAN, Judge.

Nevada Easley appeals from the judgment of the trial court awarding her permanent-partial-disability benefits for her work-related injuries. We affirm in part, reverse in part, and remand.

Easley sued her employer, the Huntsville-Madison County Public Library (“the Library”), seeking to recover workers’ compensation benefits. Easley worked for the Library as a branch librarian. On January 19, 2004, Easley injured her left arm in an accident while emptying a book-return bin at work. After the accident, Easley experienced persistent pain in her left arm, missed several weeks of work, and underwent physical therapy.

Easley was eventually treated by Dr. Stanton Davis, an orthopedic surgeon. Dr. Davis diagnosed Easley as having a partial tear of her left biceps. In July 2004, Dr. Davis restricted Easley to lifting no more than 10 pounds with her left arm and to working 20 hours per week. Eas-ley continued to undergo physical therapy on her left arm. Dr. Davis opined that Easley reached maximum medical improvement for her left-arm injury on August 23, 2004.

In January 2005, Easley returned to Dr. Davis, complaining of pain in her right shoulder. Dr. Davis .concluded that Eas-ley suffered from impingement of the right shoulder. In Dr. Davis’s opinion, Easley’s right-shoulder injury resulted from her overcompensating with her right arm for her left-arm injury. Easley underwent physical therapy on her right shoulder. Dr. Davis concluded that Easley reached maximum medical improvement for her right-shoulder injury on April 13, 2005. Due to Easley’s injures to her left arm and right shoulder, Dr. Davis ultimately restricted Easley to 20 hours per week of “sedentary work,” which consisted of “only paperwork and no overhead activity.”

In June 2005, Easley submitted a resignation notice to the Library. In the notice, Easley stated that she was unable to continue her employment with the Library because of the pain and limitations caused by her work-related injuries. On July 8, 2005, the Library accepted Easley’s resignation. On September 18, 2005, the Library held a retirement reception for Eas-ley.' A videotape of the reception was submitted into evidence at trial. In its judgment, the trial court found that the videotape indicated none of the ‘“facial grimacing’ or other pain behavior or limitations” noted by Dr. Davis in his examinations of Easley. Easley testified that she acted the same way at the reception as she would on any other day. After reviewing the videotape, Dr. Davis testified that Eas-ley’s actions at the reception were consistent with the restrictions he had placed on her.

Easley was 77 years old at the time of her accident in January 2004, and she was 80 years old at the time of the trial. Eas-ley worked for the Library for more than 40 years, primarily as a branch librarian. Easley testified that she graduated high school and attended college for one year. Easley’s job duties as a branch librarian included being responsible for the materials and equipment at the branch library; supervising and training personnel; overseeing the development of the collection at the branch, including reading book reviews and selecting new books to be ordered; answering patrons’ questions; planning and promoting special activities for children and adults; maintaining circulation statistics; accounting for all money received at the branch; and conducting other duties involving the efficient operation of the branch, including shelving books, emptying the book-return bin, and helping to keep the premises in a clean condition. Easley testified that she had prepared the budget for her library branch. Donna Schremser, the Library’s executive director, testified at trial that a branch librarian’s duties are typically more intellectual than physical.

John McKinney, a vocational expert, testified at trial for Easley. McKinney interviewed Easley, reviewed her medical records, and administered an aptitude test to Easley. McKinney testified that Easley’s test results indicate that she reads at an eighth-grade level, spells at a fifth-grade level, and performs mathematical computations at a third-grade level. McKinney opined that Easley is 100% vocationally disabled as a result of her work-related injuries.

Easley testified that she disagreed with the results of McKinney’s aptitude test. Schremser testified that someone possessing the aptitude indicated by Easley’s test results could not have performed the duties of a branch librarian. Schremser stated that the aptitude-test results greatly underestimated Easley’s actual intellectual abilities.

Russ Gurley, a vocational expert, testified at trial for the Library. Gurley interviewed Easley and reviewed her medical records. Gurley testified that Easley is capable of working as a receptionist, switchboard operator, hotel desk clerk, and night auditor. Gurley also testified that Easley could perform some customer-service work and some clerical work. Gur-ley opined that, based on Easley’s demonstrated abilities and the restrictions placed on her by Dr. Davis, Easley is 50%-60% vocationally disabled as a result of her work-related injuries.

Easley testified that she experiences constant pain in both her left arm and her right shoulder. Easley further testified that she takes anti-inflammatory medication for her pain. Easley stated that, after her work-related injuries, she can no longer clean her house, needs assistance carrying groceries, and has difficulty sleeping.

The trial court entered a judgment awarding Easley permanent-partial-disability benefits based on the trial court’s finding that she had sustained an 80% loss of ability to earn due to her work-related injuries. The trial court’s judgment also awarded the Library a credit for disability payments previously made by the Library to Easley. The trial court applied that credit against the accrued permanent-partial-disability benefits due Easley. Easley timely appealed.

“When this court reviews a trial court’s factual findings in a workers’ compensation case, those findings will not be reversed if they are supported by substantial evidence. § 25 — 5—81(e)(2), Ala.Code 1975. Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Further, this court reviews the facts ‘in the light most favorable to the findings of the trial court.’ Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996). This court has also concluded: ‘The [1992 Workers’ Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.’ Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995). However, our review as to purely legal issues is without a presumption of correctness. See Holy Family Catholic School v. Boley, 847 So.2d 371, 374 (AIa.Civ.App.2002) (citing § 25-5-81(e)(l), Ala.Code 1975).”

Reeves Rubber, Inc. v. Wallace, 912 So.2d 274, 279 (Ala.Civ.App.2005).

“The test for permanent total disability is the inability to find gainful employment. Bidemann Industries Corp. v. Peterson, 655 So.2d 997, 1000 (Ala.Civ.App.1994). Further, a ‘permanent total disability’ is defined as including ‘any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment.’ § 25 — 5—57(a)(4)(d), Ala.Code 1975; Alabama Catfish, Inc. v. James, 669 So.2d 917 (Ala.Civ.App.1995). ‘Total disability’ does not mean entire physical disability or absolute helplessness. Bidermann, supra. It is the duty of the trial court to make some determination as to the extent of disability. Id. In making the determination, the trial court must consider all the evidence, including its own observations, and interpret it to its own best judgment. Id.”

Fryfogle v. Springhill Mem’l Hosp., Inc., 742 So.2d 1255, 1257-58 (Ala.Civ.App.1998).

On appeal, Easley argues that the trial court erred in not finding that she is permanently and totally disabled as a result of her work-related injuries. However, there is substantial evidence supporting the trial court’s finding that Easley suffered an 80% permanent partial disability. “[T]he trial court in a workers’ compensation case has considerable discretion in determining an employee’s percentage of disability or loss of earning ability.” Williams v. Lee Apparel Co., 610 So.2d 410, 412 (Ala.Civ.App.1992). The trial court observed Easley’s testimony and demeanor at trial and observed her behavior on the videotape of her retirement reception. In its judgment, the trial court found that the videotape indicated none of the “pain behavior or limitations” noted by Dr. Davis in his examinations of Easley. There was also evidence submitted indicating that Easley’s long-time job as a branch librarian required her to exercise predominantly mental skills. This evidence supports a finding that Easley’s physical restrictions did not render her totally disabled. Russ Gurley, the Library’s vocational expert, testified that Easley is 50%-60% vocationally disabled. Gurley testified that Easley is capable of working several jobs given her qualifications and restrictions.

Easley contends that the trial court erred in relying on Gurley’s opinions regarding her disability because, Easley says, those opinions were based on speculation and conjecture. We note that the trial court found that Easley is 80% permanently partially disabled and that Gur-ley opined that Easley is only 50%-60% vocationally disabled. In determining an employee’s degree of disability, the trial court is not bound by the opinions of expert witness. Rogers v. Chrysler Motors Corp., 587 So.2d 367, 370 (Ala.Civ.App.1991). Although Easley would have this court discount Gurley’s opinion in our review of the trial court’s judgment, “[t]his court’s role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom.” Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002). As we have noted, the trial court’s finding of an 80% permanent partial disability is supported by substantial evidence.

Easley also argues that the trial court erred in applying prejudgment disability payments made by the Library as a credit against accrued permanent-partial-disability benefits owed to Easley. Easley cites no authority for this argument. “ ‘Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor [our] function to perform all the legal research for an appellant.’ ” Henderson v. Alabama A & M Univ., 483 So.2d 392, 392 (Ala.1986) (quoting Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984)). Moreover, this court has stated:

“Our review of the Workers’] Compensation Act reveals nothing barring a credit for advance payments of permanent partial disability benefits. Although no section of the Act specifically provides for an employer to be given credit for permanent partial disability benefits paid prior to a trial court’s judgment, the Act appears to favor the payment of benefits prior to litigation.”

Gold Kist, Inc. v. Mullinax, 650 So.2d 937, 939 (Ala.Civ.App.1994). Accordingly, the trial court did not err in awarding the credit against the accrued benefits.

Easley also argues that the trial court, in calculating Easley’s benefits, omitted permanent-partial-disability benefits that accrued between February 10, 2005, and July 8, 2005. Before that period, Easley had reached maximum medical improvement for her left-arm injury. The Library concedes that the trial court should have awarded Easley accrued permanent-partial-disability benefits for that period. This omission by the trial court appears to be an obvious error.

Insofar as the judgment of the trial court failed to award Easley accrued permanent-partial-disability benefits for the period between February 10, 2005, and July 8, 2005, we reverse the judgment, and we remand the case. In all other respects, we affirm the judgment.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . In its judgment, the trial court concluded that Easley's right-shoulder injury was a "natural consequence” of her left-arm injury and that Easley’s right-shoulder injury fell outside the schedule found in § 25-5-5 7(a)(3), Ala. Code 1975. See Werner Co. v. Williams, 871 So.2d 845, 855 (Ala.Civ.App.2003) (stating that an injury to the shoulder is not an injury to the arm, which is compensated pursuant to the schedule). The trial court also concluded that Easley’s left-arm injury and right-shoulder injury should be treated as injuries to the body as a whole, pursuant to Ex parte Drummond Co., 837 So.2d 831 (Ala.2002). The correctness of those conclusions are not challenged on appeal.


text:
    Darrell Willis HENNIS v. Timmi Deeann HENNIS.
    2050713.
    Court of Civil Appeals of Alabama.
    July 20, 2007.

      Charles H. Jones, Jr., Mobile, for appellant.
    A. Michael Onderdonk and Martin R. Pearson of Turner, Onderdonk, Kim-brough, Howell, Huggins & Bradley, P.C., Chatom, for appellee.
   BRYAN, Judge.

Timmi Deeann Hennis (“the mother”) brought an action for divorce against her husband Darrell Willis Hennis • (“the father”), alleging an irretrievable breakdown of the marriage and seeking, among other things, custody of the couples’ minor daughter (“the child”). The trial court granted a divorce to the parties, and the father has timely appealed from that judgment. We affirm in part, reverse in part, and remand for further proceedings.

The mother and father were married in 1996. On March 5, 2002, the child :was born to the couple. Following the mother’s initiation of the divorce action, the trial court heard testimony from the parties and then entered a pendente lite order in April 2004. That order awarded the parties joint temporary custody of the child and required, among other things, the parties to arrange for the father to have custody of the child 6½ days out of every 14 days.

„ At the time of the trial, the father was 37 years old. He was employed by the Mobile Fire Department as a “swing driver” emergency medical technician. The father’s work schedule required him to work for 24 hours continuously, then he would be off duty for 48 hours continuously. Typically, the father would start work at 7:00 in the morning and then work until 7:00 a.m. the next day. As a result of that schedule, he would have some weekends off of work and would work other weekends. According to the father’s testimony, when the child was staying with him pursuant to the pendente lite order, the father’s mother would take care of the child when the father was working. The father testified that, according to his calculations, he would be off of work for 129 days during the 180 days that the child would be in school. Therefore, the father stated, he would be better able to provide for the child than the mother in terms of time spent with the child.

The father testified that his monthly income was $2,568.65, but he admitted that that amount did not include overtime pay. According to the father’s testimony, his expenses exceed his income by $609 per month. The father also testified that he could not afford to pay child support to the mother wfere she to be awarded custody of the child. However, when asked how he makes up for the difference in • his expenses and his income, the father testified that he worked overtime every chance he had. The father admitted that he did not include his overtime pay in his CS-41 child-support income affidavit. Additionally, when asked whether his list of expenses included any “padded” expenses, the father stated “I hadn’t padded much .... ” Athough it was not clear how much overtime the father might expect to work in the future, the testimony at trial indicated that overtime work might be available to him in the future; nothing in his testimony indicated that it would certainly not be available.

The father also testified that he paid for health insurance for both himself and the child. That insurafice coverage included dental insurance as well as extra coverage for cancer.

The mother, who was 35 years old at the time of the trial, testified that, since the parties separated in May 2003, she had been living with her parents in Gulf Shores. The mother also testified that she was employed full-time at Thomas Hospital in Fairhope as a cancer registrar. Concerning her work hours, the mother testified that she worked from 7:30 a.m. to 4:00 p.m. on weekdays and that she was off of work on the weekends. Occasionally she worked overtime.

The mother stated that she could obtain insurance for both herself and the child and that, although she was not sure about the scope of the father’s insurance coverage, she knew that the child would be able to see any doctor under her coverage plan- — -even if that meant paying a larger copay when necessary. According to the mother, the cost-to cover the child under her plan would be $37 more than the amount she was then paying to cover herself. Thé mother also testified that a disadvantage of continuing to use the father’s insurance policy would be that under that policy she would have to drive the child to Mobile for medical visits, whereas under her insurance policy she would be able to take the child to Thomas Hospital in Fair-hope where she was employed.

In regard to the child’s potential daycare service in the event she were to have custody of the child, the mother testified that enrolling the child in a day care operated by the United Methodist Church would cost $100 per week. Other day-care centers the mother had investigated would cost the same amount or more. The parties anticipated that the child would start public school when she could enroll in five-year-old kindergarten. The mother also testified that because of the pendente lite custody order the child was only with her for one week out of every two. Therefore, the mother testified, she had not enrolled the child in a day care because she would have had to pay to keep the child’s spot in the day care even when the child was not attending. Instead of being enrolled in day care, the child had been staying with the maternal grandparents when the mother attended work.

The mother testified that she had been abused by the father and that she left him because of that abuse. Although the mother stated that the majority of the abuse was verbal and emotional, she added that he had also physically abused her one time when he picked her up and threw her down on a bed. According to the mother, the father indicated at that time that he wanted to hit her with his belt. The mother further testified that on another occasion the father threw a bar stool at her when she was trying to leave their house to attend church. The father denied that he had ever hit the mother or that -he threw a bar stool at her, but he admitted that he had thrown her over his shoulder on one occasion. On another occasion, according to the mother, the father pushed Rebecca Blakemore, the child’s maternal grandmother (“the maternal grandmother”), in a Wal-Mart discount department store parking lot during an exchange of the child pursuant to the trial court’s pen-dente lite custody order. The mother and the maternal grandmother testified that it was only after the father had pushed the maternal grandmother that the maternal grandmother hit the father with the child’s “sippy cup.” The father disputed that version of the incident, but he acknowledged that a confrontation had occurred. The mother also testified that she felt that were the father to lose his temper with the child, as he had with her, the child would be in danger.

Concerning the state of her health, the mother testified that she has diabetes and that she uses an insulin pump that injects insulin into her' body 24 hours a day. Although the father opined that the mother’s diabetes could prevent her from properly taking care of the child, the mother testified that her diabetes would not pose such a problem.

The father stated that he had attended counseling with Wanda Taylor, a licensed professional counselor, because he had been very distraught about losing his wife. Taylor was called by the father to testify, apparently as an expert witness. When Taylor took the stand the mother objected to her testimony on the basis that she had requested Taylor’s records regarding counseling sessions with the father but those records were never provided to the mother. In response to a subpoena for those documents issued by the trial court during the course of discovery, Taylor wrote to the trial court stating that those records were confidential and that under § 34-8A-21, Ala.Code 1975, she could not provide them at that time. When the trial court sustained the mother’s objection to Taylor’s testimony, the father’s attorney stated that he took exception to that ruling; however, he did not state what he expected Taylor’s testimony to show.

. Three other witnesses for the father testified, including the father’s minister, the father’s mother, and a friend of the father. Their testimony was to the effect that the father loved the child and that the child’s best interests would be served by placing her in his custody. However, each of the witnesses had a limited knowledge of the father’s interaction with the mother during the course of their marriage,

Following the conclusion of the trial, the trial court entered a judgment that divided the parties’ marital property, awarded joint legal custody of the child to the parties, and awarded physical custody of the child to the mother. The trial court’s judgment also ordered the father to pay $604 in monthly child support, as well as 50% of the child’s noncovered medical expenses. In addition, the judgment required the mother to provide insurance coverage for the child. The father moved the trial court to alter, amend, or vacate the judgment or, in the alternative, to grant the father a new trial. The trial court heard oral arguments concerning the father’s motion, but it ultimately denied that motion. The father then timely appealed from the trial court’s judgment.

As this court recently stated concerning the applicable standard of review:

. “When 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 exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). ‘Th[is] presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demean- or.’ Littleton v. Littleton, 741 So.2d 1083, 1085 (AIa.Civ.App.1999). The trial court’s ability to observe witnesses is particularly important in child-custody cases. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001)(quoting Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981))(“Tn child custody cases especially, the perception of an attentive trial judge is of great importance.” ’). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000).”

Mullis v. Mullis, [Ms. 2051068, June 22, 2007] - So.2d -, - (Ala.Civ.App. 2007). However, the ore terras standard of review does not apply to a trial court’s conclusions as to legal issues. R.K. v. R.J., 843 So.2d 774, 776 (Ala.Civ.App.2002). Issues of law are reviewed de novo. Barber v. Moore, 897 So.2d 1150, 1153 (Ala.Civ.App.2004).

The father first argues that the trial court erred when it excluded the testimony of Taylor. At trial the father sought to call Taylor to testify, apparently as an expert witness. During discovery, the trial court had issued a subpoena directing Taylor to produce any and all documents related to the father’s counseling. Taylor wrote a letter in response to the trial court’s order to produce documents, stating that she was required to keep her records confidential pursuant to § 34-8A-21, Ala.Code 1975. The father argues that Taylor simply invoked her statutory privilege and respected her duty of confidentiality to her client when refusing to turn over her records. Therefore, the father argues, the trial court should not have excluded the entirety of Taylor’s testimony merely because of Taylor’s adherence to her professional responsibility to keep confidential the father’s records.

We review a trial court’s decision to exclude evidence to determine whether the trial court exceeded its discretion. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330, 334 (Ala.2006) (citing Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63, 71 (Ala.2001)).

“ ‘Generally, in order to preserve review of the trial court’s ruling sustaining an objection to proffered evidence, the party offering the evidence must make an offer of proof indicating what the evidence would have shown. Cherry v. Hill, 283 Ala. 74, 214 So.2d 427 (1968). However, in situations in which the question disallowed indicates on its face the expected answer, no offer of proof is necessary to preserve error on appeal. Id.”

Kilcrease v. John Deere Indus. Equip. Co., 663 So.2d 900, 902 (Ala.1995) (quoting Walton v. Walton, 409 So.2d 858, 861 (Ala.Civ.App.1982)). Thus, “[t]he Walton exception to the ‘offer of proof rule is applicable if, from the full context of the record, the trial court is fully aware of the nature of the testimony the witness is prepared to give if permitted to testify.” Kilcrease, 663 So.2d at 902. “Where the relevancy of evidence is not self-evident, the proponent of it must make an offer of proof explaining its relevancy in order to preserve error.” Systrends, Inc. v. Group 8760, LLC, 959 So.2d 1052, 1064 (Ala.2006) (citing Kilcrease, supra; Burkett v. American Gen. Fin., Inc., 607 So.2d 138 (Ala.1992); and Harbert v. Harbert, 721 So.2d 224 (Ala.Civ.App.1998)). Thus, “[w]here the evidence may be admissible for one purpose but inadmissible for another, the offeror must so specify in his offer in order to put the trial court in error.” Systrends, 959 So.2d at 1065 (citing Town of Eclectic v. Mays, 547 So.2d 96 (Ala.1989), and Ensor v. Wilson, 519 So.2d 1244 (Ala.1987)); see also Rule 103(a)(2), Ala. R. Evid.

In this case, when the trial judge excluded Taylor’s testimony the father’s attorney merely stated that he took exception to that ruling. The father never made an offer of proof explaining the relevancy of Taylor’s testimony. Furthermore, we cannot say that the trial court was “fully aware” of the nature of the testimony Taylor was prepared to give, or that the relevancy of her testimony was “self-evident.” Although the father’s attorney stated what Taylor’s testimony would have shown during his oral argument in support of the father’s postjudgment motion, the father’s failure to make an offer of proof of Taylor’s expected testimony at the time of the trial failed to preserve the issue for appellate review. See Davis v. Davis, 474 So.2d 654, 656 (Ala.1985) (holding that an appellant’s offer of proof made in a motion for a new trial was insufficient to preserve any alleged error because a party must make an offer of proof at the moment an objection is sustained by the trial court). Thus we affirm the judgment of the trial court as to this issue.

The second issue the father raises is whether the trial court erred in granting the mother physical custody of the child. In reviewing the trial court’s custody determination we apply the following principles:

“In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. Hall v. Hall, 571 So.2d 1176 (Ala.Civ.App.1990). The trial court’s overriding consideration is the children’s best interests and welfare. Santmier v. Santmier, 494 So.2d 95 (Ala.Civ.App.1986). The factors that enter into the court’s custody determination include the child’s age and sex and each parent’s ability to provide for the child’s educational, material, moral, and social needs. Tims v. Tims, 519 So.2d 558 (Ala.Civ.App.1987). Likewise, it is proper for the court to consider the ‘characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent.’ Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981).”

Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994).

The father argues that the trial court erred in awarding custody of the child to the mother because, he says, the mother’s diabetes may impair her ability to care for the child and because the father would have more days off from work to take care of the child than the mother. Although the father argues that it is difficult to see what “tipped the scale” in the mother’s favor, there is substantial evidence to support the trial court’s judgment. For example, the mother testified concerning her parents’ efforts to help her raise the child and concerning her efforts to enroll the child in a day care to allow interaction with other children. The mother also testified that her diabetes was under control, that she had stable employment, and that her parents would help her take care of the child when necessary. The trial court could have determined that the child’s best interests would be served by placing her in the mother’s custody. Therefore, we affirm the judgment of the trial court insofar as it placed the custody of the child with the mother.

The third issue the father presents is whether the trial court erred in its calculation of the child support the father must pay the mother. Specifically, the father asserts three grounds for reversal on this issue: (1) the trial court erroneously included day-care expenses in its child-support calculation; (2) the trial court erred in ordering the mother to pay for the child’s medical and dental insurance and in ordering the father to pay one-half of noncov-ered medical expenses; and (3) the trial court erred in failing to deviate from the Rule 32, Ala. R. Jud. Admin., child-support guidelines because strictly applying those rules would result in an undue hardship upon the father. The calculation of a parent’s child-support obligation is governed, at least, in part, by the application of Rule 32, Ala. R. Jud. Admin. This court has stated:

“A court determines a noncustodial parent’s child-support obligation by applying Rule 32, which establishes ‘Child Support Guidelines’; the application of the those guidelines is mandatory. Nelson v. Landis, 709 So.2d 1299 (Ala.Civ.App.1998). The trial court has no discretion in the matter. Mitchell v. Mitchell, 723 So.2d 1267 (Ala.Civ.App.1998). Furthermore, our supreme court has recognized that those guidelines require the trial court to consider all the resources of both parents and not simply their incomes. Mitchell, supra (citing Ex parte St. Clair County Dep’t of Human Res., 612 So.2d 482 (Ala.1993)). Rule 32(E), Ala. R. Jud. Admin., provides that ‘[a] standardized Child Support Guidelines form and a Child Support Obligation Income Statement/Affidavit ... shall be filed in each action to establish or modify child support obligations and shall be of record and shall be deemed to be incorporated by reference in the court’s child support order.’ The trial court may, within its discretion, deviate from the Child Support Guidelines; however, if it does so, it must enter a written finding, supported by the evidence, that the application of the guidelines would be unjust or inequitable. Rule 32(A)(i) and (ii); Allegro v. State ex rel. Lett, 747 So.2d 913, 914 (Ala.Civ.App.1999); Nelson v. Landis, supra. ‘A trial court’s failure to follow the guidelines or to make written a finding that the application of the guidelines would be unjust, is reversible error.’ State ex rel. Waites v. Isbell, 718 So.2d 85, 86 (Ala.Civ.App.1998).”

Robinson v. Robinson, 795 So.2d 729, 733-34 (Ala.Civ.App.2001). The father asserts that the trial court wrongly included the expenses the mother might incur for day care when the mother is at work. The father argues that the maximum amount allowable for day care pursuant to Rule 32 for Baldwin County, where the wife resides, is $72 per week. In fact, however, the maximum amount allowable in Baldwin County is $82 per week.

Rule 32(B)(8), Ala. R. Jud. Admin., provides the following regarding child-care costs:

“(8) Child Care Costs. Child care costs, incurred on behalf of the children because of employment or job search of either parent, shall be added to the ‘basic child support obligation.’ Child care costs shall not exceed the amount required to provide care from a licensed source for the children, based on a schedule of guidelines developed by the Department of Human Resources. Before the Department of Human Resources implements any revision to the schedule of child care cost guidelines, it shall provide the ADC [the administrative director of courts] a copy of the revised schedule. The ADC shall, as soon as reasonably practicable thereafter, disseminate the revised schedule to all judges, all circuit, district, and juvenile court clerks and registers, and the Family Law Section of the Alabama State Bar. The clerk or register shall maintain the current schedule in his/her office, shall make it available for review, and shall provide copies of it on request, at the customary cost for copies of documents.”

(Emphasis added.) Rule 32(C)(2), Ala. R. Jud. Admin., provides in pertinent part, “(2) Computation of Child Support. A total child support obligation is determined by adding the basic child support obligation, work-related child care costs, and health insurance costs.” (Emphasis added.)

The child-support-obligation form, which was prepared by the mother’s attorney and which was evidently adopted by the trial court, includes $433 in monthly work-related child-care costs. According to the rates established by the Department of Human Resources, the maximum amount chargeable for a preschool-aged child in Baldwin County is $82 per week, or approximately $355 per month. Thus, the father’s child-support obligation deviates from the presumptively correct amount of child support to be awarded under the child-support guidelines. The trial court’s judgment does not contain a finding on the record indicating that the application of the guidelines would be unjust or inappropriate, as is required by Rule 32(A), Ala. R. Jud. Admin.; therefore, we must reverse the judgment of the trial court insofar as the child-support award deviates from the child-support guidelines. See Parker v. Parker, 946 So.2d 480, 489 (Ala.Civ.App.2006) (reversing a trial court’s judgment that did explain in writing why the trial court had deviated from the guidelines).

The father also argues that the trial court should not have awarded the mother any child-care expenses when, at the time of the trial, the child was not enrolled in day care. The father relies upon this court’s opinion in Hoplamazian v. Hoplamazian, 740 So.2d 1100 (Ala.Civ. App.1999), for that proposition; however, the facts in Hoplamazian are distinguishable from the facts in this case because in Hoplamazian the recipient of the child support (the mother) was not employed and did not intend to become employed. Id. at 1104. The trial court in Hoplamazi-an had imputed income to the mother and had then included the hypothetical cost of child care the mother would have incurred were she employed when it determined the father’s child-support obligation. Id. This court concluded in Hoplamazian that the mother had not incurred child-care costs because of her employment or job search and that “[t]o impute such a cost to her, when the result would increase the father’s support obligation, is patently unfair.” Id. at 1105 This case is different because the mother was a full-time employee at the time of the trial and because she stated that were she to have physical custody of the child she would enroll the child in a day-care facility so that the child could interact with other children.

The father also points out that the child will not be enrolled with a child-care provider full-time when she enters kindergarten. The father is correct in observing that the child-care expenses the mother would accrue would be reduced at that point; however, that contingency has not yet come to pass. The record indicates that the parties intended to enroll the child in five-year-old kindergarten but that in August 2006, when the mother was to take physical custody of the child, the child would have been approximately four and one-half years old. Although the parties did not specify the year in which the child could enroll in five-year-old kindergarten, the father testified that he thought the child would be five years old at that time. Therefore, we cannot say the trial court erred in awarding full-time child-care expenses to the mother, because at the time of the judgment the child could have been too young for enrollment in public school.

The father also argues that the trial court erred in ordering the mother to pay for medical and dental insurance for the child when the mother did not specifically state that her insurance covered dental expenses. We note that the mother testified that the only difference between her policy and the father’s policy was that under her policy she could take the child to the hospital where she worked instead of driving farther away. The mother’s testimony also indicated that covering the child’s insurance costs would be cheaper under her policy. Thus, we cannot say that the trial court exceeded the limits of its discretion in ordering the mother to provide the child’s medical and dental insurance coverage.

Concerning the father’s argument that the trial court’s judgment requiring him to pay 50% of the child’s noncovered medical expenses constituted a deviation from the Rule 32 child-support guidelines, we note that the father is required to pay 3% less than the trial court could have permissibly required him to pay, given that the father’s percentage of the parties’ total income was 53%. In West v. Rambo, 786 So.2d 1138 (Ala.Civ.App.2000), this court affirmed the portion of a trial court’s judgment requiring a father to pay 63% of noncovered medical and dental expenses for the child when the trial court could have based that judgment upon the percentages that the parents were required to pay under Rule 32, Ala. R. Jud. Admin. Id. at 1142-43. Similarly, in this case the father’s obligation to pay 50% (an amount less than the father’s 53% share of the child’s overall expenses) of the child’s non-covered medical expenses is not plainly and palpably wrong. However, in light of this court’s reversal of the trial court’s judgment concerning the work-related child-care expenses, we note that the trial court, upon remand, may reexamine this issue to ensure compliance with Rule 32.

The father also argues that the payment of child support would place an undue burden upon him. According to the father’s brief, his monthly expenses are approximately $2,375 while his monthly income is $1,765.80. However, the father testified at trial that his monthly income was $2,568.65. That is also the amount the father put on his child-support-income statement/affidavit that he submitted to the trial court. The father admitted that the amount on that form was his salary only and did not include overtime wages. Further, the father’s testimony was that he did not “pad” his expenses “much.” The trial court could have interpreted that to mean that at least some of the father’s expenses had been exaggerated by the father. Additionally, the father stated that his work schedule will allow him to have, in his words, 129 days off out of the 180 days the child would be in school. Therefore, the trial court could have imputed additional income to the father on the basis that the father had significant amounts of free time during which he could elect to obtain another job. We 'will not reweigh the factual conclusions the trial court could have drawn from the ore tenus evidence. This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994). Therefore, we find no merit in the father’s argument that the payment of child support would place an undue burden upon him.

We affirm the trial court’s exclusion of testimony from the father’s counselor and the trial court’s award of primary physical custody to the mother. But for one exception, we also affirm the trial court’s award of child support. The exception is that we reverse the trial court s calculation of the child-support award on the basis of $433 per month for work-related child-care costs without providing any written explanation for its deviation from the Rule 32 guidelines. We remand the case for the trial court either to calculate the child-support award on the basis of the amount specified by the Rule 32 guidelines for work-related child-care costs, which, in this case would be a maximum amount of $355.33 per month, or to provide a written explanation for its deviation.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . No transcript of the 2004 pendente lite hearing is included in the record presented to this court.

      . When asked whether Taylor was being called as an expert witness, the attorney for the father stated “I suppose so.”

      . The attorney who filed and argued the father’s postjudgment motion was different from the father’s trial attorney.

      . Although the record does not contain a list of the applicable rates, Rule 32(B)(8), Ala. R. Jud. Admin., requires a schedule of maximum allowable child-care costs to be disseminated to "all judges, all circuit, district, and juvenile court clerks and registers, and the Family Law Section of the Alabama State Bar.” On July 20, 2007, the date this opinion was released, the schedule could be accessed online at: http://www.alacourt.gov/childsupport. html. A copy of the schedule is also available in the case file of the clerk of the Alabama Court of Civil Appeals.


author: PER CURIAM. SHAW, Judge,

text:
    Lee Curtis UNDERWOOD v. STATE of Alabama.
    CR-05-2149.
    Court of Criminal Appeals of Alabama.
    March 2, 2007.
    Rehearing Denied April 20, 2007.
    Certiorari Denied June 15, 2007 Aabama Supreme Court 1061119.
    Robert H. Turner, Marion, for appellant.
    Troy King, atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN and WISE, JJ., concur.

BASCHAB, P.J., and WELCH, J., concur in the result.

SHAW, J., concurs in the result, with opinion.

SHAW, Judge,

concurring in the result.

I agree with the majority’s holding in its unpublished memorandum that Lee Curtis Underwood’s argument — that the trial court lacked jurisdiction to accept his guilty pleas to second-degree rape because, he says, second-degree rape is not a lesser-included offense of first-degree rape as charged in his indictment — was not properly preserved for review and is, therefore, not properly before this Court. Under Ex parte Seymour, 946 So.2d 536 (Ala.2006); Herren v. State, 969 So.2d 926 (Ala.Crim.App.2006) (opinion on return to remand); Cobb v. State, 962 So.2d 891, 895 (Ala.Crim.App.2006) (opinion on application for rehearing); and Taylor v. State, 953 So.2d 429 (Ala.Crim.App.2006), Underwood’s argument does not implicate jurisdiction. However, I must point out that the majority’s holding that the issue presented by Underwood is not a jurisdictional issue, although in line with Seymour and its progeny, conflicts with this Court’s recent opinion in Williams v. State, 961 So.2d 929 (Ala.Crim.App.2006), in which four judges on this Court (I dissented) held that pleading guilty to an offense not included in the indictment is a jurisdictional defect. Williams, I believe, is in direct conflict with Seymour, Herren, Cobb, and Taylor, and I believe this Court should take the opportunity in this case to overrule Williams before it creates more confusion in this already confusing area of the law.

I also agree with the majority’s alternative holding that second-degree rape is a lesser-included offense of first-degree rape. The majority is correct that “in determining whether one offense is included in another, the trend of recent Alabama decisions is to focus on the statutory elements of the offenses and the factual allegations actually included in the indictment, rather than on the evidence or factual basis the State presents at trial or during the guilty-plea colloquy.” Johnson v. State, 922 So.2d 137, 141 (Ala.Crim.App.2005). See also Ex parte Cole, 842 So.2d 605 (Ala.2002); Moss v. State, 929 So.2d 486 (Ala.Crim.App.2005); Bradley v. State, 925 So.2d 221 (Ala.Crim.App.2004); Wright v. State, 902 So.2d 720 (Ala.Crim.App.), aff'd, 902 So.2d 738 (Ala.2004); Childers v. State, 899 So.2d 1023 (Ala.Crim.App.2003), writ quashed, 899 So.2d 1025 (Ala.2004); and Toliver v. State, 881 So.2d 1070 (Ala.Crim.App.2003). Although this trend emanates from Cole, and I agree with this Court’s previous holdings in Her-ren, Cobb, and Taylor that Cole was overruled by Seymour, I believe that Seymour overruled Cole only insofar as Cole held that a claim by a criminal defendant that he or she pleaded guilty to a crime not included in the indictment is a jurisdictional claim; Seymour did not, in my view, overrule the analysis established in Cole for determining whether one offense is included in another.

That being said, I question why the Supreme Court in Cole did not mention § 13A-1-9, Ala.Code 1975, during its analysis. In holding in Cole that second-degree robbery was not a lesser-included offense of first-degree robbery as charged in Cole’s indictment because all the essential elements of second-degree robbery were not included in the indictment charging first-degree robbery — i.e., that Cole had been aided in the robbery by another person — the Alabama Supreme Court, although not specifically mentioning that statute, apparently relied on § 13A-1-9(a)(1), Ala.Code 1975, which provides, in pertinent part, that “[a]n offense is an included one if ... [i]t is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged.” However, § 13A-1 — 9(a)(3), Ala.Code 1975, provides, in pertinent part, that “[a]n offense is an included one if ... [i]t is specifically designated by statute as a lesser degree of the offense charged.” Under § 13A-l-9(a)(3) second-degree robbery is, as a matter of law, a lesser-included offense of first-degree robbery, regardless of the facts alleged in the indictment, because second-degree robbery is specifically designated by statute as a lesser degree of first-degree robbery.

By the same token, under § 13A-1-9(a)(3) second-degree rape is, as a matter of law, a lesser-included offense of first-degree rape, regardless of the facts alleged in the indictment, because second-degree rape is specifically designated by statute as a lesser degree of first-degree rape. Therefore, I agree with the majority that, even if Underwood’s argument was properly before this Court, it is meritless because second-degree rape is a lesser-included offense of first-degree rape.

For these reasons, I concur in the result.

      . I note that although Williams was issued the same day as Herren, the majority relied solely on a case that predated Seymour, without any mention or discussion of Seymour, Herren, Cobb, or Taylor.

      . The majority's attempt in this case to distinguish Williams is unpersuasive to me. Regardless of the offenses involved, the issue presented in Williams is the same as the issue presented in this case: whether a tritil court lacks subject-matter jurisdiction to accept a guilty plea to an offense the defendant claims is not a lesser-included offense of the offense charged. Although in this case the issue lacks merit while in Williams the issue was meritorious, the merit, or lack thereof, of an issue does not affect its nature, i.e., whether it impacts the subject-matter jurisdiction of the trial court.

      . I note that the State did not seek a rehearing in Williams; the certificate of judgment was issued in that case on January 8, 2007.

      .Although I agree with the majority that Ex parte Washington, 571 So.2d 1062 (Ala.1990), in which the Alabama Supreme Court held that, based on the evidence that would have been presented by the State if the case had gone to trial, second-degree rape was a lesser-included offense of first-degree rape, has not been expressly overruled by the Supreme Court, it has been implicitly overruled by Cole and its progeny, and this Court has previously recognized that overruling. See, e.g., Childers v. State, 899 So.2d 1025 (Ala.2004) (in which four Justices on the Supreme Court questioned the continuing validity of Washington in light of Cole), and Bradley, supra, (in which this Court recognized that Childers was consistent with this Court's interpretation of Cole).