author: LYONS, Justice.

text:
    Henry SINGLETON and Shelby Singleton v. STATE FARM FIRE & CASUALTY COMPANY.
    1040919.
    Supreme Court of Alabama.
    Nov. 10, 2005.

      Chris T. Heliums and Michael C. Bradley of Pittman, Hooks, Dutton, Kirby & Heliums, P.C., Birmingham, for appellants.
    Bert S. Nettles, C. Dennis Hughes, Joseph L. Cowan II, and John H. McEniry IV of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellee.
   On Application for Rehearing

LYONS, Justice.

The opinion of September 16, 2005, is withdrawn, and the following is substituted therefor.

Henry Singleton and Shelby Singleton appeal from a partial summary judgment entered by the Coosa Circuit Court in favor of State Farm Fire & Casualty Company. We affirm the judgment of the trial court.

I. Facts and Procedural History

The Singletons own a homeowners’ insurance policy issued by State Farm. The roof of the Singletons’ garage, which is flat and covered with an asphalt-based rolled material rather than with conventional roofing shingles, was damaged by wind in June 2001, and the Singletons filed a claim with State Farm under their homeowners’ policy. The agent who sold the Singletons their policy inspected the roof and informed the Singletons that he did not think the policy would cover their claim. Subsequently, a State Farm claims adjuster, Crystal Worth, examined the roof. The Singletons provided her with two estimates they had obtained from roofers who proposed to replace the entire roof. The Singletons had had their garage roof completely replaced in May 2001, before the wind damage occurred. Mrs. Singleton testified in deposition that the estimates the Singletons gave Worth were obtained in May 2001. Mr. Singleton testified that he could not remember when the estimates were obtained, but that he believed they were obtained after the wind damage had occurred. After her inspection, Worth informed the Singletons that she believed that the damaged portion of the roof could be patched for less than $500, the amount of the deductible on the Singletons’ policy. Therefore, Worth explained, State Farm would not pay the Singletons’ claim. She later sent the Singletons a letter formally denying their claim.

The Singletons, through their attorney, sent a letter to Worth requesting that she reconsider her decision to deny payment on the claim. They included with their letter the two previously provided estimates for the replacement of the entire roof. The activity log in the Singletons’ claims file contains an entry indicating that Worth spoke with one of the roofers who supplied the estimates. In a letter dated after the entry in the claims file, Worth again informed the Singletons that State Farm would not pay their claim because the damaged portion of the roof could be repaired for less than the amount of the deductible on their policy.

The Singletons sued State Farm, alleging breach of contract and bad-faith refusal to pay their claim. The basis of the breaeh-of-contract claim is State Farm’s failure to pay for the replacement of the entire roof, which the Singletons say was necessary in order to restore the roof to its condition before the wind damage. The basis of the bad-faith-failure-to-pay claim is the Singletons’ contention that State Farm failed to adequately investigate their claim.

State Farm moved for a summary judgment on both counts. The trial court entered a summary judgment in favor of State Farm on the bad-faith claim but denied it as to the breach-of-contract claim. Pursuant to Rule 54(b), Ala. R. Civ. P., the trial court certified its judgment as final, and the Singletons appealed.

II. Standard of Revieiv

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion.... ” McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘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.’ Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994).

III. Analysis

The Singletons rely on State Farm Fire & Casualty Co. v. Slade, 747 So.2d 293 (Ala.1999), in which this Court discussed the previously recognized distinction between “normal” and “abnormal” bad-faith cases. In the “normal” bad-faith case, the plaintiff must show the absence of any reasonably legitimate or arguable reason for denial of a claim. Slade, 747 So.2d at 306. In the “abnormal” case, bad faith can consist of: 1) intentional or reckless failure to investigate a claim, 2) intentional or reckless failure to properly subject a claim to a cognitive evaluation or review, 3) the manufacture of a debatable reason to deny a claim, or 4) reliance on an ambiguous portion of a policy as a lawful basis for denying a claim. 747 So.2d at 306-07. The instant case is an “abnormal” bad-faith case.

“ ‘Bad faith ... is not simply bad judgment or negligence. It imports a dishonest purpose and means a breach of known duty, i.e., good faith and fair dealing, through some motive of self-interest or ill will.’” Slade, 747 So.2d at 303-04 (quoting Gulf Atlantic Life Ins. Co. v. Barnes, 405 So.2d 916, 924 (Ala.1981)). The Singletons contend that the trial court erred in entering a summary judgment in favor of State Farm on the Singletons’ bad-faith claim. They argue that they presented substantial evidence indicating that State Farm did not properly investigate their claim and/or that it failed to conduct a cognitive evaluation or review of their claim. Instead, the Singletons argue, State Farm manufactured a rationale in order to deny their claim.

In Slade, the plaintiffs’ home had been severely damaged as a result of soil shifting, which was caused by lightning striking and destroying a retaining wall. The plaintiffs’ homeowners’ insurance policy generally covered damage caused by lightning, but it did not cover damage resulting from “earth movement.” Based on that exclusionary provision in the policy, the defendant insurance company refused to pay the claim, and the plaintiffs sued, alleging breach of contract and bad-faith refusal to pay an insurance claim. This Court held that the plaintiffs had presented sufficient evidence in support of their contention that the insurance company failed to investigate their claim properly; thus the defendant insurance , company was not entitled to a judgment as a matter of law on the plaintiffs’ bad-faith claim:

“The Slades produced evidence indicating that [the defendant insurance company] never, in the course of its investigation, sent to fheir home someone who was qualified to conduct a lightning investigation. The Slades presented evidence indicating that [the defendant] never interviewed any of the witnesses present on the day lightning struck their retaining wall. The Slades presented expert testimony indicating that these omissions amounted to an improper investigation, on the basis that an investigation of a claim such as the Slades made required the use of a lightning expert. The Slades also presented evidence indicating that [the defendant] did not investigate lightning as a cause. The Slades produced evidence indicating that [the defendant] told its engineer, Buck Durham, to investigate a ‘possible soil problem’ and that it did not tell Durham about the lightning strike. This evidence conflicted with [the defendant’s] ‘Good Faith Claims Handling’ video, which was admitted into evidence and which contained a statement that [the defendant’s] claims-handling policy was to attempt to find coverage.”

Slade, 747 So.2d at 315. This Court agreed with the plaintiffs that the evidence “created a question of fact as to whether [the insurance company] properly investigated [the plaintiffs’] claim, and, therefore, that the trial court properly submitted [the] .:. bad-faith claim to the jury.” 747 So.2d at 315.

In the instant case, the Singletons contend that they have presented substantial evidence indicating that State Farm was guilty of bad faith in failing to investigate their claim properly. They contend that the evidence shows that the only cognitive evaluation performed by State Farm was performed by Worth, State Farm’s claims adjuster not by anyone with any real expertise who could make a recommendation as to whether the Singletons’ entire roof needed to be replaced in order to repair the damaged portion properly. The Singletons also point out that State Farm’s claims manual notes that it may be necessary to replace an entire roof in order to repair such damage and notes further that a claims adjuster should “consider the individual circumstances each claim presents and make a decision based on the merits of each case as determined in the investigation.” The claims manual also instructs its adjusters that “[i]f there is a dispute over the amount of damage, [the claims representative is to] meet with the insured and roofer at the risk and reinspect.” The Singletons contend that they presented substantial evidence indicating that Worth failed to follow these instructions and that the evidence shows that Worth simply made her own determination (without consulting, with an expert) that the roof could be fixed by patching rather than by full replacement.

State Farm contends that Worth is “thoroughly qualified to assess the damage to the Singletons’ garage roof,” because she has adjusted claims on at least 2,500 roofs, “a lot” of them being the type of flat roof involved in this case. State Farm also contends that its investigation of the Singletons’ claim was adequate because, it says, the agent who sold the Singletons their policy examined the roof within three days of receiving notice of the damage. It also notes that Worth, who later examined the damage herself, took photographs of the roof, drew a diagram of the roof reflecting the location of the damaged portion, and prepared an “itemized estimate using data gathered from her on-site investigation to determine that the cost of repairing the damaged area was less than the Singletons’ deductible.”

We need not decide whether, if the preceding was the only evidence presented, a genuine issue of material fact would exist as to the adequacy of State Farm’s investigation. As noted, the evidence also shows that, after Worth sent the Singletons a letter explaining her conclusion that the roof could be repaired by patching, as well as formally denying their claim, the Singletons had their attorney send Worth a letter asking her to reevaluate her conclusion and included in that letter the two previous estimates the Singletons had obtained for replacing the roof. Worth’s activity log for the Singletons’ claim contains an entry dated after Worth received that letter. The entry indicates that Worth placed a telephone call to one of the roofers who had prepared the Singletons’ estimates:

“Called Old Southern Rfg. Co. — spoke to Kenneth Deason — [h]e advised his [estimate] is for reroofing [the Singletons’] rolled roofing w/ a mop down 3 ply built-up roof. He could’ve replaced w/ same for $1200 but won’t do that kind of roof [because] it doesn’t last. If roof was new & had wind [damage] he could’ve repaired the roof for [less than] $250.”

(Emphasis added.) It is undisputed that the Singletons’ roof was new at the time of the wind damage. The record also contains a letter Worth sent to the Singletons’ attorney after Worth had her conversation with Kenneth Deason. In that letter, Worth states:

“I contacted Old Southern Roofing Company and spoke to Kenneth Deason. He advised me that the estimate written was for a different type of roofing than the roofing currently on the Singleton’s [sic] garage. He advises that rolled roofing does not last, and he wrote the estimate for three-ply built-up roofing. He advised that it would be approximately $1,200.00 for a rolled roofing estimate to replace that area. Mr. Deason also advised me that a new roof that had wind damage, such as the damage seen in this claim, could be repaired. He advised me that he could make those repairs for less than $250.00. Therefore, we respectfully decline to change the amount of the initial estimate.”

With respect to Worth’s entry in the activity log stating that Deason informed her that he “could’ve repaired the roof for [less than] $250,” the Singletons contend that, while Deason may have concluded that it would cost $250 “to do a patch job ... [a] reasonable jury could find that ... Kenneth Deason actually believed that a patch was not appropriate but believed that, in this situation, the entire rolled roof had to be replaced.” (Singletons’ reply brief, at 14.) The Singletons cite an affidavit Deason executed at a point in time after the Singletons’ attorney had requested that their claim be reevaluated and after Worth and Deason had had their telephone conversation. In that affidavit, Deason stated, “[b]ecause of the nature and extent of the storm damage to Mr. Singleton’s roof, the section of the roof could not have been properly repaired. The section of roof had to be replaced in order to function properly.” While Dea-son’s actual belief regarding what needed to be done in order to repair the roof properly may be material to the Singletons’ breach-of-contract claim, the issue presented on this appeal is whether Worth’s telephone conversation with Dea-son, when Combined with her other efforts, constitutes an adequate investigation sufficient to withstand the Singletons’ claim of bad faith. Deason’s statement in his first affidavit conflicts with the following statement he made in a later affidavit:

“I have reviewed and placed my initials on the photographs of the Singleton’s [sic] house and garage attached to this affidavit.... To repair the damage shown in these photographs it would not be necessary to replace the entire roof. I could have repaired the damage shown in these photographs for less than $500.00.”

(Emphasis added.)

The activity log, when combined with Deason’s second affidavit, shows the absence of a genuine issue of material fact regarding the adequacy of State Farm’s investigation of the Singletons’ claim. The evidence shows that Worth contacted Dea-son and that she understood him to believe that the damage to the Singletons’ roof could be repaired without replacing the entire roof. The only testimony from Dea-son cited in response by the Singletons is the affidavit Deason executed after his conversation with Worth. On State Farm’s motion for a summary judgment, which relied on evidence of Worth’s conversation with Deason, the burden of persuasion shifted to the Singletons to adduce facts contradicting such evidence and creating a genuine issue of material fact. However, the evidence consisting of the entry in the activity log describing the telephone call indicating that Deason told Worth that he could repair the roof without replacing it stands uncontroverted. Fair-minded persons in the exercise of impartial judgment could not reasonably infer from the evidence in this record that Worth did not understand Deason to believe that the roof could be fixed without completely replacing it. It is not possible to infer from the record before us that Worth decided to deny the Singletons’ claim without consulting any outside source.

That Worth might not have strictly complied with the letter of the claims manual under the circumstances here presented may indicate bad judgment or negligence,

but more than bad judgment or negligence is required in a bad-faith action. Slade, 747 So.2d at 303-04. The Singletons have failed to adduce sufficient evidence of “dishonest purpose” or “breach of known duty, i.e., good faith and fair dealing, through some motive of self-interest or ill will.” Id. Therefore, we hold the trial court did not err in entering a summary judgment for State Farm on the Singletons’ bad-faith claim, and we affirm that judgment.

APPLICATION FOR REHEARING OVERRULED; OPINION OF SEPTEMBER 16, 2005, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

      . The Singletons also included in their complaint a count alleging negligence against the State Farm agent who sold them the policy. The agent is now deceased, and the negligence count has been voluntarily dismissed.

      . The Singletons did not contend in the trial court, nor do they contend here, that the activity log and Worth’s subsequent letter outlining her conversation with Deason, events occurring after State Farm’s initial denial of the claim, were irrelevant to the issue of bad faith. Cf. Jones v. Alabama Farm Bureau Mut. Cos. Co., 507 So.2d 396, 400 (Ala.1986) ("Mrs. Jones also argues that Farm Bureau's 'reinvestigation' was the only investigation of the claim and was conducted after the initial, actionable denial of the claim occurred.... We address Mrs. Jones’s second issue first by noting that the investigation conducted by Farm Bureau after Kratzer’s denial of the claim cannot serve as an arguable basis for denying the claim initially, because 'whether an insurance company is justified in denying a claim under a policy must be judged by what was before it at the time the decision was made.’ National Savings Life Insurance Co. v. Dutton, 419 So.2d 1357, 1362 (Ala.1982) (emphasis supplied).”). To the extent that the Singletons make this contention in their appellate brief (the argument is at best only obliquely presented), we cannot reverse the judgment of the trial court based on an argument not made below and urged for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). We therefore must, based solely on the posture of the issues in this proceeding, consider these documents as relevant to the issue whether State Farm acted in bad faith in refusing to pay the Singletons' claim.


source: Caselaw Access Project

author: CRAWLEY, Presiding Judge.

license: Public Domain

text:
    N. Laquetta SMITH v. Brian C. SMITH. Brian C. Smith v. N. Laquetta Smith.
    2031182.
    Court of Civil Appeals of Alabama.
    Oct. 28, 2005.

      R. David McDowell, Huntsville, for appellant/cross-appellee N. Laquetta Smith.
    Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appel-lee/cross-appellant Brian C. Smith.
   CRAWLEY, Presiding Judge.

This is the third time the parties have been before this court. N. Laquetta Smith (“the wife”) and Brian C. Smith (“the husband”) were divorced on March 13, 2001. The trial court divided the marital assets and liabilities, awarding the wife, among other things, 32% of the value, as of February 1, 2001, of the husband’s 401(k) retirement account at Nichols Research Corporation (“NRC”). The wife was not awarded periodic alimony.

On the first appeal, the husband argued that the wife was not entitled to a share of his retirement benefits because the couple had not been married for 10 years at the time the divorce complaint was filed. This court agreed and reversed the award to the wife of a portion of the husband’s retirement benefits. See Smith v. Smith, 836 So.2d 893 (Ala.Civ.App.2002) (“Smith I ”). Deciding an issue of first impression, we held that for purposes of the 10-year-marriage requirement of § 30 — 2—51(b)(1), AIa.Code 1975, the duration of a marriage is measured by the date of the filing of the complaint for divorce rather than by the date of the judgment divorcing the parties. At the conclusion of the opinion in Smith I, this court stated:

“Because the entire judgment, including the division of marital assets and the failure to award periodic alimony must be considered together in order to determine whether the trial court abused its discretion, see Hanna v. Hanna, 688 So.2d 887 (Ala.Civ.App.1997), and because we are reversing the trial court’s award to the wife of a portion of the husband’s retirement benefits, we must remand this case with instructions that the trial court reconsider the division of the marital assets and the award of periodic alimony. Although § 30 — 2—51(b)(1) precludes the division of the husband’s retirement benefits as marital property, the retirement benefits may be considered as a source of income to the husband from which to pay periodic alimony. See Brasili v. Brasili, 827 So.2d 813, 821 n. 9 (Ala.Civ.App.2002).”

Smith I, 836 So.2d at 900. During the pendency of the appeal in Smith I,

“the wife withdrew 32% of the husband’s 401(k) account and had it transferred to a separate 401 (k) account in her name. The amount of that withdrawal was $24,346.23. The husband did not move for a stay of execution of the trial court’s judgment or file a supersedeas bond.”

Smith v. Smith, 866 So.2d 588, 590 (Ala. Civ.App.2003) (“Smith II ”).

“On remand after this court’s reversal of the judgment, the trial court, on July 19, 2002, ordered the wife to restore to the husband the $24,346.23 she had withdrawn from his 401 (k) account. The trial court also ordered the husband to pay the wife $400 per month in periodic alimony. The trial court made no other changes in the division of marital assets and liabilities.”

Smith II, 866 So.2d at 590. The husband appealed from the trial court’s judgment on remand; the wife cross-appealed. In Smith II, the husband argued that this court had erred in its remand order by stating that the trial court could consider the husband’s retirement benefits as a source of income from which to pay periodic alimony. The husband maintained that periodic alimony must be payable from current income and, he said, his retirement account was not a source of current income for him. Distinguishing and discussing prior cases, this court agreed with the husband in Smith II:

“We ... reverse the trial court’s judgment awarding the wife periodic alimony and remand the cause for reconsideration by the trial court. 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 II, 866 So.2d at 592-93. On remand to the trial court after the decision in Smith II, the wife waived her claim for periodic alimony. The husband insisted, however, that he was entitled to be reimbursed for $3,692.20 in periodic alimony payments he had made from August 2002 — pursuant to the trial court’s order on remand following our decision in Smith I — through May 2003, when Smith II was decided. The trial court denied the husband’s claim for reimbursement.

In Smith II, the husband also contended that the trial court had erred by not requiring the wife to pay 12% interest on the $24,346.23 in retirement benefits that she was ordered to restore to the husband. The wife cross-appealed, arguing that the trial court had erred by denying her post-judgment motion without a hearing on the following issues:

“[The wife] contended] that the' trial court erred by ordering her to restore to the husband the $24,346.23 she withdrew from the husband’s 401(k) account when, she [said], she was entitled to present evidence indicating that, due to a decline in the stock market after the divorce and through no fault of her own, the value of the retirement funds at the time of the court’s order on remand was only $10,953.68. Furthermore, she also alleged the following:
“ ‘5. That all [NRC] employees, former and present, had to roll over or close their 401(k) account[s] (due to [a] merger with [Computer Services Corporation]), and that employees were given six (6) months to make the election to roll over or close the accounts. The [wife] was never provided with such notice and believes that the [husband] was provided with the information but did not pass it along to her.
“ ‘6. As no election was made, the [wife] received a check for $9348.35 and has been informed that $2337.07 has been paid to the Internal Revenue Service for tax and penalty. Said sum is not recoverable from the IRS.
“ ‘7. That the Order should be amended so that [the wife] returns to the [husband] $9348.28, the value of the account on the date it was closed.’ ”

Smith II, 866 So.2d at 590-91. With respect to the wife’s cross-appeal in Smith II, this court held:

“We conclude that the trial court erred in denying the wife a hearing on those issues. The wife was awarded a percentage of the husband’s retirement assets without regard to its value. Upon a reversal of the award, the wife would be required to return the same percentage of the assets to the husband, regardless of its current market value. See generally Green v. Green, 254 So.2d 802 (Fla.Dist.Ct.App.1971). If, as has apparently occurred in this case, the assets have declined in market value between the time of the initial award and the time of the appellate court reversal, then the wife is not liable to the husband for the depreciation because the husband did not move for a stay of execution of the judgment or file a su-persedeas bond. Id.
“The other matters raised by the wife — that the husband failed to notify her of the time limit for her to elect to ‘roll over’ or close the 401(k) account in her name after [NRC] merged with [Computer Services Corporation] and that his failure resulted in her being liable to the Internal Revenue Service for taxes and penalties — are based on disputed questions of fact that must be resolved by the trial court.
“On the appeal, the judgment is reversed and the cause is remanded to the circuit court with instructions for that court to reconsider the division of marital assets and the award of periodic alimony. On the cross-appeal, the trial court is instructed to hold a hearing on the wife’s Rule 59 motion.”

Smith II, 866 So.2d at 593. On remand to the trial court after Smith II, the trial court, on March 22, 2004, held a hearing on the wife’s postjudgment motion. On May 4, 2004, the trial court entered a judgment (1) denying the husband any reimbursement of periodic alimony he had already paid, (2) ordering the wife to restore to the husband $11,685, plus interest from May 23, 2003 (the date of this court’s opinion in Smith II), (3) revising the division of marital property to award the husband a $5,000 equity interest in the marital home upon the occurrence of any one of the following events: the sale of the marital home; the remarriage or cohabitation of the wife with a member of the opposite sex; or the parties’ younger child’s reaching the age of majority or becoming emancipated, and (4) ordering the husband to return to the wife certain items of personal property such as family memorabilia and photograph albums.

Both parties filed timely postjudgment motions — the wife on May 19, 2004, and the husband on May 28, 2004. The husband’s motion was denied on June 1, 2004. The wife’s motion was deemed denied by operation of law on August 17, 2004. See Rule 59.1, Ala. R. Civ. P. The wife filed a timely notice of appeal on September 28, 2004. See Rule 4(a)(1), Ala. RApp. P. The husband filed a timely cross-appeal on October 5, 2004. See Rule 4(a)(2), Ala. R.App. P.

Restitution to the Husband of the Amounts Withdrawn from his Retirement Account

At the March 22, 2004, hearing on remand after our decision in Smith II, the following facts were undisputed: On March 29, 2001, about two weeks after the parties were divorced, Fidelity Aggressive Growth investment fund shares valued at $24,346.23 were transferred from the husband’s 401(k) account at NRC to a separate account for the wife pursuant to a Qualified Domestic Relations Order. The wife understood that she had the option of placing the shares “into any 401(k) plan or investment plan of her choosing.” The employee-benefits manager for NRC provided the wife with a list of available options for placement of the shares. The wife chose to leave the shares in the plan used by NRC employees. On April 19, 2001, the husband elected to receive a lump-sum cash distribution of his shares.

Sometime later, NRC merged with Computer Services Corporation (“CSC”). The wife acknowledged that she had received several pieces of correspondence from CSC, but she did not specifically recall seeing anything other than an account summary. The wife failed to notify CSC as to whether she wished to roll over her account with NRC to CSC or whether she wished to close her account. At the end of 2001, the wife’s account was liquidated or “cashed out” by CSC. The value of the wife’s shares when they were “cashed out” was $11,685. CSC sent the wife a check for $9,348.28; the balance went to the Internal Revenue Service to pay income taxes and early-withdrawal penalties.

The wife asserts that the trial court erred by requiring her to pay the husband $11,685, plus interest, to reimburse the husband for the assets that were transferred to her from his retirement account. She claims that she should have been required to pay only $9,348.28, the net amount that she received after income taxes and penalties were deducted. She points out that, in Smith II, this court held that she should not be held accountable for the depreciation in the value of the account due to economic circumstances over which she had no control. Accordingly, she argues, she should not be held accountable for taxes and penalties that, she says, were incurred through no fault of her own.

The wife testified that the husband had handled all of the parties’ financial affairs during the marriage and had never discussed investment accounts with her. The wife had argued in Smith II that the husband “failed to notify her of the time limit for her to elect to ‘roll over’ or close the 401(k) account in her name after [NRC] merged with CSC and that [the husband’s] failure resulted in her being liable to the [IRS] for taxes and penalties.” 866 So.2d at 593. In light of the undisputed evidence adduced at the March 2004 hearing, however, that argument has no merit. The evidence indicated that the husband had cashed out his 401(k) account immediately after the divorce. Thus, the husband would not have received any notice, after the NRC-CSC merger, of the time limit within which an NRC account holder was required to “roll over” his or her 401(k) account to a CSC account. Moreover, duties that may arise by virtue of the marital relationship are terminated by divorce. See 24 Am Jur.2d Divorce and Separation § 409 (2005). After the divorce, the husband neither had a duty nor undertook a duty to offer the wife financial advice.

We hold that the trial court did not err in ordering the wife to restore $11,685 to the husband. Based on the evidence adduced at the March 2004 hearing, it is undisputed that the value of the shares in the wife’s control before the “cash-out” was $11,685. The trial court was authorized to find that the wife failed to respond to requests from CSC that she make an election as to the disposition of her account and, therefore, that the reduced value of her cash distribution was solely attributable to her own negligence.

On his cross-appeal, the husband argues that the wife should have been required to restore to him 1,060.375 shares of the mutual fund, whatever its value. He also argues that interest should have been calculated from May 31, 2002, the date of our reversal in Smith I, and not from May 23, 2003, the date of our decision in Smith II. The husband has changed his position and advanced both arguments for the first time on this appeal. In Smith II, his argument was “that the trial court erred by not ordering the wife to pay 12% interest on the $24,346.23 she was ordered to restore to the husband.” 866 So.2d at 590. Moreover, in his postjudgment motion on May 28, 2004, he moved the trial court to set aside its May 4, 2004, judgment and to enter a judgment of “reimbursement of the 401(k) plan in the amount of $24,346.23 along with statutory interest from April of 2001.”

“[A]n appellate court may not consider an issue that has been raised for the first time on appeal. See, e.g., Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458, 465 (Ala.2002); Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). A trial court ‘ “should not be placed in error on matters which the record reveals it neither ruled upon nor was presented the opportunity to rule upon.” ’ J.K v. Lee County Dep’t of Human Res., 668 So.2d 813, 817 (Ala.Civ.App.1995)(quoting Wilson v. State Dep’t of Human Res., 527 So.2d 1322, 1324 (Ala.Civ.App.1988)).”

Wilcoxen v. Wilcoxen, 907 So.2d 447, 450 (Ala.Civ.App.2005).

The Award to the Husband of a $5,000 Interest in the Former Marital Home

The wife asserts that the trial court erred by awarding the husband a $5,000 interest in the former marital home because, she says, such an amendment of the property division was not within the mandate of this court in Smith II. We disagree. Our instructions on remand in both Smith I and Smith II contemplated that the trial court would or could amend the division of marital property. In Smith I, we stated:

“Because the entire judgment, including the division of marital assets and the failure to award periodic alimony must be considered together in order to determine whether the trial court abused its discretion,. see Hanna v. Hanna, 688 So.2d 887 (Ala.Civ.App.1997), and because we are reversing the trial court’s award to the wife of a portion of the husband’s retirement benefits, we must remand this case with instructions that the trial court reconsider the division of the marital assets and the award of periodic alimony.”

Smith I, 836 So.2d at 900 (emphasis added). In Smith II, we “remanded [the cause] to the circuit court with instructions for that court to reconsider the division of marital assets and the award of periodic alimony.” 866 So.2d at 593.

The Husband’s Claim for Restitution - of Periodic Alimony He Has Already Paid

The husband maintains that the trial court erred by denying his claim for restitution of the periodic-alimony payments he made between August 2002, pursuant to the trial court’s judgment on remand from this court’s decision in Smith I, and May 2003, when this court decided Smith II. We agree.

In denying the husband’s claim for restitution, the trial court cited § 30-2-55, Ala. Code 1975. That section provides:

“Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex. This provision shall be applicable to any person granted a decree of divorce either prior to April 28, 1978, or thereafter; provided, however, that no payments of alimony already received shall have to be reimbursed.”

(Emphasis added.) Section 30-2-55 applies when a valid judgment awarding alimony is subsequently modified by terminating alimony upon proof of the recipient spouse’s cohabitation. It has no application to a judgment awarding alimony that is subsequently reversed on appeal. See Shirley v. Shirley, 361 So.2d 590, 591 (Ala.Civ.App.1978)(holding that “[t]he reversal of a judgment, or a part thereof, wholly annuls it, or the part of it, as if it never existed”).

Citing Woolwine v. Woolwine, 549 So.2d 512 (Ala.Civ.App.1989), the husband contends that he is entitled to restitution of sums already paid unless restitution is shown' to be inequitable. He maintains that the wife had the burden of showing that restitution would be inequitable and, he says, she made no such showing. Therefore, he claims, the trial court erred by denying his motion for restitution.

In Woolwine, a husband appealed from the denial of his request for reimbursement of postjudgment periodic alimony he had paid while the case was pending on appeal and before the judgment was reversed. This court held that the trial court had erred in denying reimbursement to the husband:

“The husband is, in essence, seeking restitution. This is an equitable remedy by which the husband could be restored to the position he occupied prior to the rendition of the erroneous portion of the divorce decree.
“We recognize that restitution is not, in and of itself, an absolute and invariable right which follows every case where there is a judgment, a satisfaction, and a subsequent reversal. However, we also recognize that restitution is a favored remedy which should be granted unless inequities would result from such an action.”

Woolwine, 549 So.2d at 514. See Restatement of Restitution § 74 (1937) (“[a] person who has conferred a benefit upon another in compliance with a judgment ... is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable_”).

The husband is correct that the wife had the burden of showing that restitution would be inequitable, see Crocker v. Clements’ Adm’r, 23 Ala. 296 (1853), and that she made no such showing at the March 22, 2004, hearing on remand after Smith II. We therefore hold that the trial court erred by failing to order the wife to restore to the husband $3,692.20 in periodic-alimony payments.

The Award to the Husband of Family Photographs and Memorabilia

The husband argues that the trial court erred in ordering him to return to the wife all items of family memorabilia and photographs. He claims that those items should, instead, have been equitably divided between the parties.

The evidence at the March 2004 hearing indicates that at the time of the divorce, the husband took the family photographs, compact discs, and other family memorabilia capable of duplication and agreed to copy them for the wife. He testified that he had duplicated many of the items and given the duplicates to the wife but that he still had possession of some items that he had not yet duplicated. Reading the testimony at the remand hearing as a whole, it is evident that the trial court intended that the parties evenly divide these items. Therefore, we affirm that portion of the trial court’s judgment on remand with the proviso that the items of family memorabilia be divided evenly between the parties.

Conclusion

Those parts of the trial court’s judgment ordering the wife to reimburse the husband $11,685 plus interest from May 23, 2003; awarding the husband a $5,000 interest in the former marital home; and requiring the husband to return family memorabilia and photographs to the wife are affirmed. That part of the judgment denying the husband’s claim for reimbursement of periodic alimony paid from August 2002 through May 2003 is reversed, and a judgment for $3,692.20 is rendered in favor of the husband.

APPEAL — AFFIRMED.

CROSS-APPEAL — AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED IN PART.

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

      . In Yohey v. Yohey, 890 So.2d 160, 167 (Ala.Civ.App.2004), this court reaffirmed the statement in Smith II's plurality opinion that periodic alimony must be payable from current income, noting that the 43-year-old husband in Smith II was not currently drawing retirement income.

      . In Smith II, we held:
      "The wife was awarded a percentage of the husband's retirement assets without regard to its value. Upon a reversal of the award, the wife would be required to return the same percentage of the assets to the husband, regardless of its current market value. See generally Green v. Green, 254 So.2d 802 (Fla.Dist.Ct.App.1971). If, as has apparently occurred in this case, the assets have declined in market value between the time of the initial award and the time of the appellate court reversal, then the wife is not liable to the husband for the depreciation because the husband did not move for a stay of execution of the judgment or file a supersedeas bond.” 866 So.2d at 593.


author: BRYAN, Judge. THOMPSON, Judge,

text:
    Wanda HARMON v. Douglas HARMON.
    2031063.
    Court of Civil Appeals of Alabama.
    Nov. 4, 2005.

      John A. Tinney, Roanoke, for appellant.
    Dianne James Davis, Alexander City, for appellee.
   BRYAN, Judge.

Wanda Harmon (“the wife”) appeals a divorce judgment, contending that it awarded her insufficient marital property, insufficient periodic alimony, and insufficient child support. We affirm in part, reverse in part, and remand with instructions.

The wife sued Douglas Harmon (“the husband”) for a divorce on the grounds of adultery, incompatibility, and an irretrievable breakdown of the marriage. She requested custody of the parties’ minor child. In his answer, the husband denied that he had committed adultery. He counterclaimed for a divorce on the grounds of incompatibility and an irretrievable breakdown of the marriage, but he did not request custody of child. The trial court granted the wife pendente lite custody of the child and ordered the husband to pay $150 per week in pendente lite child support.

On November 18 and 19, 2002, the trial court held a hearing at which it received evidence ore tenus. However, before the trial court entered a judgment, the parties entered into a settlement agreement on June 5, 2003, allocating between them the ownership of certain items of personal property, the equity in the marital residence, and the mortgage indebtedness owed on the marital residence. In the agreement, the parties also requested that the trial court, in dividing the marital property, take into account the property the parties had already allocated to each other in the settlement agreement. In the agreement, the parties further agreed to submit all issues not included in the agreement for decision by the trial court.

On June 11, 2003, the trial court entered a partial judgment that divorced the parties on the grounds of incompatibility and adultery on the part of the husband and that adopted the parties’ settlement agreement; the trial court reserved jurisdiction to rule on all remaining issues. On August 13, 2004, the trial court entered a final judgment that, among other things, divided the marital assets between the parties, awarded the wife primary physical custody of the child, awarded the wife $150 in weekly child support, awarded the wife $500 per month in alimony, and awarded the wife an attorney’s fee of $7,000.

In accordance with the parties’ settlement agreement, the final judgment provided that the wife would convey her interest in the marital residence to the husband and that the husband would pay all of the $323,130.55 in mortgage indebtedness owed on the marital residence. It also provided, in accordance with the settlement agreement, that the husband would sell the marital residence and that the wife would receive $50,000 of the equity in the marital residence from the sale proceeds and the husband would receive $20,000 of the equity in the marital residence from the sale proceeds.

In addition, the final judgment awarded the wife the parties’ 2001 GMC Yukon sport-utility vehicle, which was valued at $32,000 and all other property in her possession. The property in her possession included a $500 bank account and $10,000 life insurance policy: In addition to the property awarded to' the wife in the final judgment, the parties had agreed in the settlement agreement that the wife would receive furniture and other personal items with an approximate value of $22,150.

The final judgment awarded the hus-' band all property in his possession. The property in the husband’s possession included $1,000 in cash or bank accounts and a life insurance policy insuring the life of the husband. This policy gives the husband’s brother the option to purchase certain stock with the proceeds of the policy. The wife testified that this life insurance policy has a value of $1 million dollars while the husband testified that it has a value of $500,000. The property in the husband’s possession also included another life insurance policy insuring the life of the husband and having a value of $500,000; a 401(k) retirement account with a value of $11,000; an ownership interest in Harmon Engineering and Construction Company, Inc.. (“Harmon Engineering”); and an ownership interest in Harmon Properties, Inc. (“Harmon Properties”). The final judgment also ordered the husband to pay the outstanding indebtedness on the 2001 Yukon. In addition to the . property awarded to the husband by the final judgment, the parties had agreed in the settlement agreement that the husband would receive other personal property with a value of approximately $12,000.

The final judgment awarded the wife $150 per week in child support and ordered the husband to pay the child’s coverage for medical and dental insurance, one-half of the child’s medical and dental charges not covered by his insurance, and the child’s private-school tuition. The final judgment further provided that, if the child enrolls in a public school, the husband must pay an amount equal to one-half of the child’s private-school tuition as child support in addition to the $150 per week. The record does not contain any Child Support Obligation Income Statement/Affidavit (“CS-41”) or Child Support Guidelines (“CS-42”) forms. The wife timely appealed the final judgment entered by the trial court.

On appeal, the wife first argues that the trial court erred in failing to award her an equitable portion of certain properties and in awarding an insufficient amount of periodic alimony.

“The well-established standard of review is that a divorce judgment based on ore tenus evidence is presumed correct. See Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). Such a judgment will be reversed only where it is unsupported by the evidence so as to be plainly and palpably wrong. Id. at 733. On appeal the division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue. See O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996). A property division does not have to be equal in order to be equitable based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court. See Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).
“When dividing marital property and determining a party’s need for alimony, a trial court should consider several factors, including ‘ “the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.” ’ Ex parte Elliott, 782 So.2d 308 (Ala.2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985)) (footnote omitted). In addition, the trial court may also consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility,.... Ex parte Drummond, 785 So.2d 358 (Ala.2000); Myrick v. Myrick, 714 So.2d 311 (Ala.Civ.App.1998).”

Baggett v. Baggett, 855 So.2d 556, 559-60 (Ala.Civ.App.2003).

The parties were married in 1990. One child was born of the marriage. The wife was 47 years old at the time of trial. Her health problems include an irregular heartbeat, arthritis in her hands, and a pinched nerve in her neck. She also has had surgery, which restricts her ability to lift heavy objects. Finally, she began taking antidepressants after the parties separated in September 2001.

The wife worked inside the home during most of the marriage. However, she has worked in the nursery business, the radio-broadcasting industry, and the publishing industry. After the parties separated, the wife applied unsuccessfully for several jobs. Moreover, she unsuccessfully attempted to start up several businesses. The wife currently works as a personal and production assistant for Community Service Network and earns $150 a week. The wife has an associate degree in horticulture. In addition, she has taken one year of course work in special education and some of the classes that would qualify her for a position as a travel agent.

The husband was 33 years old at the time of trial. His mobility is somewhat limited due to a neck injury he suffered in an accident. The husband is employed at Harmon Engineering. He has completed two years of college course work, but he has not obtained a college degree.

At the time of trial, the husband was earning a salary of $48,000 from Harmon Engineering. However, the wife introduced evidence establishing that the husband reported an annual income of approximately $346,000 for the tax year 1999 and approximately $352,000 for the tax year 2000. The husband reported an annual income of approximately $133,000 for the tax year 2001. The husband testified that his income for 1999 and 2000 were unusually high because Harmon Engineering was extraordinarily lucrative in those years. The husband estimated his income for 2002 at between $80,000 and $85,000.

The husband owns a 42.5% interest in Harmon Engineering and a 20% interest in Harmon Properties. His interest in Harmon Engineering is valued at $675,000. Additionally, the husband testified that his interest in Harmon Properties is valued at $120,000; however, the wife introduced evidence tending to prove that his interest in Harmon Properties has a value of $362,574. In addition, the husband testified that he and his brother jointly own property located in LaFayette, Alabama (“the LaFayette property”), with an estimated value of $9,100.

The trial court also received evidence regarding the parties’ debts. The wife incurred $7,246 in credit-card debt after the parties separated. She testified that she incurred the debt because the husband was in arrears in paying his child-support obligation. Her monthly expenses are approximately $2,130 per month. The husband testified that his monthly expenses total approximately $5,618. The husband testified that he pays one-half of the expenses of his paramour’s monthly mortgage, utilities, and groceries. The husband’s debts total approximately $83,000.

With regard to the cause of the breakdown of the marriage, the evidence was undisputed that the husband had physically and verbally abused the wife. Moreover, the wife testified that the husband had assaulted their child. The husband testified that the wife had, verbally abused him and struck him on several occasions. In addition, the husband testified that the wife drank excessively in the past. Although he testified that the wife was faithful throughout the marriage, the husband testified that she had withheld her affection from him.

Additionally, the evidence established that the husband had begun a relationship with another woman while the parties were married. The husband had begun living with the other woman six or seven months before trial. Although the husband denied that he and the other woman had engaged in sexual relations before the parties’ separation in September 2001, he admitted to engaging in such relations one month before trial. The wife also admitted that she had engaged in sexual relations with another man after the parties’ separation, although she testified that she did so under the misapprehension that the parties had already divorced.

The wife argues that the trial court erred in its periodic-alimony award. However, considering the trial court’s award of approximately $114,650 in marital property to the wife, we cannot hold that the trial court’s award of $500 per month in periodic alimony constituted an abuse of discretion.

The wife also argues that the trial court erred in failing to award her any interest in Harmon Engineering, Harmon Properties, or the ■ LaFayette property. Section 30-2-51(a), Ala.Code 1975, states, in pertinent part:

“If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may-order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

(Emphasis added.) Moreover,

“[njothing in [§ 30-2-51] states that if one party’s inheritance or gifts are used for the parties’ common benefit then the trial judge must consider the inheritance or gifts when making the property division. In fact, the statute leaves such a determination to the discretion of the trial judge. ‘[T]he judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family.’ Section 30-2-51(a), Ala.Code 1975.”

Ex parte Drummond, 785 So.2d 358, 362 (Ala.2000).

The husband testified that he acquired his interests in Harmon Properties and Harmon Engineering by gifts from his father. He also testified that he acquired his interest in Harmon Properties before the parties married. However, he acquired all of his interest in Harmon Engineering in 1994, after the parties had married. In addition to his annual salary, the husband receives periodic distributions from Harmon Engineering and annual distributions from Harmon Properties. He used the distributions from Harmon Properties solely for the payment of taxes. However, the husband testified that he used his distributions from his stock ownership and salary from Harmon Engineering to pay expenses during the marriage.

Although the husband used the periodic distributions from Harmon Engineering for the common benefit of the marriage, the trial court had discretion to allocate the husband’s interest in Harmon Engineering. Ex parte Drummond, 785 So.2d at 361-62; see also Ex parte Durbin, 818 So.2d 404 (Ala.2001); and Long v. Long, 824 So .2d 778 (Ala.Civ.App.2001). Furthermore, the evidence would support a finding that the husband did not use his income from Harmon Properties regularly for the common benefit of the marriage. Moreover, even if the trial court found that the income from Harmon Properties was regularly used for the common benefit of the marriage, the trial court has discretion in dividing such property. Ex parte Drummond, supra. Therefore, we cannot hold that the trial court erred in failing to award the wife any interest in Harmon Properties or Harmon Engineering.

With regard to the LaFayette property, the husband testified that he owns a one-half interest in that property and that his one-half interest has a value of $4,550. Given the trial court’s award of approximately $114,650 in marital assets to the wife, we also conclude that the trial court did not abuse its discretion in failing to award the wife any interest in the La-Fayette property.

The wife next argues that the trial court’s awards to her of marital property and alimony were insufficient in light of its finding that the husband committed adultery. The supreme court has held:

“ ‘A trial judge does not have to ... divide the property in light of one party’s adultery unless the failure to do so would he palpably wrong in light of extensive evidence of adultery.’
“[Ex parte O’Daniel, 515 So.2d 1250, 1253 (Ala.1987).] (Emphasis added.) See also Jordan v. Jordan, 802 So.2d 238, 240 (Ala.Civ.App.2001); and Wilkerson v. Wilkerson, 719 So.2d 235, 237 (Ala.Civ.App.1998). One of the ‘[fjactors the trial court should consider in its award of alimony and its division of property [includes] the conduct of the parties in relation to the marriage.’ Turner v. Turner, 804 So.2d 1118, 1120 (Ala.Civ.App.2001).”

Ex parte Evans, 875 So.2d 297, 300 (Ala.2003).

The final judgment states, in pertinent part:

“Specifically, the court has considered [the husband’s] fault in bringing on this action. It was clear from the testimony that in addition to all of the other problems existing between the parties [the husband] became involved with another woman. In spite of the fact that [the husband] testified that no intimate relationship existed prior to separation the court is satisfied that this relationship was principally the cause of the end of this marriage.”

(R. 169.)

Thus, the trial court considered the evidence of the husband’s fault in causing the breakdown of the marriage. Given the broad discretion accorded a trial court in dividing marital property and awarding periodic alimony, Merchant v. Merchant, 638 So.2d 3 (Ala.Civ.App.1994), we cannot hold that the trial court abused that discretion.

Last, the wife argues that the trial court erred in awarding her only $150 per week in child support because, she says, the CS-A1 and CS-42 forms were not completed and the trial court did not award child support in accordance with Rule 32, Ala,-R. Jud. Admin.

The trial court received ore tenus evidence regarding the parties’ income in the hearing on the wife’s motion for pendente lite custody. However, the record on appeal does not contain a transcript of that hearing. The order awarding the wife pendente lité custody states, in pertinent part:

“Counsel did not submit any documents required by Rule 32 of the Rules of Judicial Administration. However, counsel for plaintiff did introduce the front page of the parties’ tax returns for the tax years of 1999 and 2000. Defendant testified that those tax years were unusually high and that his present income would be between forty thousand and fifty thousand dollars.”

(R. 25.) In Horwitz v. Horwitz, 739 So.2d 1118, 1120 (Ala.Civ.App.1999), this court stated:

“Rule 32(E), Ala. R. Jud. Admin., provides that ‘a standardized Child Support Guidelines form and a Child Support Obligation Income Statement/Affidavit form 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.’ Thus, Rule 32(E) mandates the filing of a standardized Child Support Obligation Income Statement/Affidavit.”

However,

“we have not, in every instance, reversed a trial court’s child-support judgment simply because the requisite forms were not contained in the record. See Rimpf v. Campbell, 853 So.2d 957, 959 (Ala.Civ.App.2002); Mosley v. Mosley, 747 So.2d 894, 898 (Ala.Civ.App.1999); and Dismukes v. Dorsey, 686 So.2d 298, 801 (Ala.Civ.App.1996) (stating that this court need not reverse a child-support award even though the required forms are not in the record where the record ‘clearly indicates] that the award comports with the evidence regarding the parties’ incomes’); see also Devine v. Devine, 812 So.2d 1278, 1282 (Ala.Civ.App.2001). If this court has been able to determine how a trial court computed the child-support obligation based on testimony or other evidence, we have affirmed.”

Dunn v. Dunn, 891 So.2d 891, 896 (Ala.Civ.App.2004) (emphasis added). Nevertheless, “ ‘[w]ithout the child support form and the income statement forms, it is difficult and sometimes impossible for an appellate court to determine from the record if the trial court did or did not correctly apply the guidelines in establishing or modifying child support obligations.’ Martin v. Martin, 637 So.2d 901, 902-03 (Ala.Civ.App.1994).” Horwitz, 739 So.2d at 1120.

The evidence at trial established that the husband’s yearly salary from Harmon Engineering is $48,000. However, the evidence also established that the husband receives other income in addition to his salary. The husband estimated his total income for 2002 to be between $80,000 and $85,000.

“ ‘In accord with Rule 32, Ala. R. Jud. Admin., the trial court must take into account all sources of income of the noncustodial parent when computing support obligations. The trial court has no discretion in this matter.... Thus, as recognized by our Supreme Court, the guidelines require the trial court to consider the resources of the parents, and not simply their incomes, in determining child support. Ex parte St. Clair County Dep’t of Human Resources, 612 So.2d 482, 483 (Ala.1993).... A trial court’s failure to apply the guidelines or to explain why the deviation occurred, requires reversal. See Doll v. Doll, 681 So.2d 601, 602 (Ala.Civ.App.1996).’
“Spillers [v. Spillers, 707 So.2d 256,] at 258 [ (Ala.Civ.App.1997) ]. See also Massey v. Massey, 706 So.2d 1272 (Ala.Civ.App.1997).”

Mosley v. Mosley, 770 So.2d 638, 640 (Ala.Civ.App.2000).

The trial court awarded the wife the equivalent of $650 per month in child support ($150 per week x 52 weeks per year / 12 months). The wife’s yearly income is $7,800. The husband’s yearly income is $80,000 to $85,000. The parties introduced no evidence regarding the other factors that affect the calculation of child support under Rule 32. However, calculating the husband’s child-support obligation under Rule 32 solely on the basis of the husband’s percentage share of the parties’ combined income would result in a child-support obligation for the husband that is significantly greater than $650 per month. Although, the trial court ordered the husband to pay the child’s private-school tuition of $4,600 per year as child support, private school tuition is not “ ‘essential to basic child support.’ ” See Deas v. Deas, 747 So.2d 332, 337 (Ala.Civ.App.1999) (quoting Hillis v. Boggs, 646 So.2d 124, 126 (Ala.Civ.App.1994)). Even though the parties stated in their briefs on appeal that the child is no longer enrolled in private school, the record on appeal does not establish this fact. “This Court is bound by the record, and it cannot consider a statement or evidence in a party’s brief that was not before the trial court. Ex parte Baker, 459 So.2d 873 (Ala.1984), Wilson v. Crosby Lumber Co., 386 So.2d 1173 (Ala.Civ.App.1980).” Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995). Furthermore, although the trial court also ordered the husband to pay the child’s health insurance, the record on appeal does not indicate the cost of retaining the child on the husband’s health insurance. Therefore, because the trial court neither awarded child support under Rule 32 on the basis of the husband’s percentage share of the parties’ combined income nor made an express finding that a deviation from the Rule 32 child-support guidelines was justified, we reverse the judgment as to the award of child support and remand the cause for the trial court to render a child-support award in accordance with Rule 32, Ala. R. Jud. Admin.

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

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

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

THOMPSON, Judge,

concurring in part and dissenting in part.

I must dissent from that portion of the majority opinion that affirms the trial court’s alimony award and property division. The record reveals that the husband is 33 years old and the wife is 47 years old. At the time the wife filed for divorce, the wife had not worked outside the home for approximately 12 years; the wife is now employed and earns approximately $7,800 a year. The wife has monthly expenses of approximately $2,130; her monthly expenses exceed her monthly income by $1,480. The husband reported earning between $80,000 and $85,000 in 2002. The husband estimated his monthly expenses, to be $5,618; he also pays a portion of his girlfriend’s monthly expenses. The husband’s monthly income exceeds his monthly expenses by at least $1,000. The wife has no retirement benefits whereas the husband owns an interest in the Harmon family businesses worth a combined value of at least $795,000 and a 401(k) retirement account valued at $11,000.

In its judgment, the trial court ordered the husband to pay the wife $500 a month in periodic alimony and awarded the wife $104,650 in marital property. The husband received his interest in the Harmon family businesses worth at least $795,000, and $44,000 in marital property.

While a divorce judgment need not be equal, it must be equitable in light of the particular facts and circumstances of the case. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996). Although I recognize that issues regarding alimony and the division of marital property rest within a trial court’s discretion, the facts of this case support a conclusion that the trial court exceeded its discretion. Marshall v. Marshall, 891 So.2d 883 (Ala.Civ.App.2004). Given the length of the parties’ marriage, the parties’ ages, the disparity between the parties’ income, and the future employment prospects of the parties, I would reverse the judgment of the trial court and remand it for a more equitable distribution of the marital property and alimony award. Accordingly, I dissent.

MURDOCK, J., concurs.

      1. Under Rule 32(B)(2)(a), Ala. R. Jud. Admin., "gross income” is defined as “income from any source, and includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trusts, annuities, capital gains, Social Security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and preexisting periodic alimony."

      . The wife also received a life insurance policy with a death benefit in the amount of $10,000.

      . The trial court also awarded the husband two life insurance policies with a combined minimum death benefit valued at $1,000,000.


author: THOMPSON, Judge.

text:
    MOSELEY GROCERY et al. v. STATE DEPARTMENT OF PUBLIC HEALTH et al.
    2040584.
    Court of Civil Appeals of Alabama.
    Nov. 4, 2005.

      Jim L. DeBardelaben, Montgomery, for appellants.
    Troy King, atty. gen., and P. Brian Hale, asst. atty. gen., and G. Gregory Locklier, asst. gen. counsel, Alabama Department of Public Health, for appellees.
   THOMPSON, Judge.

Moseley Grocery (“the store”) appeals its three-year disqualification from participation in the Special Supplemental Nutrition Program for Women, Infants, and Children (“the WIC program”). The WIC program is designed to supplement the diets of certain low-income women, infants, and children (“participants”). The WIC program is funded through the United States Department of Agriculture under Section 17 of the Child Nutrition Act of 1966. The federal government has delegated the responsibility for administering the program to the individual states. In Alabama, the State Department of Public Health (“DPH”) administers the WIC program. The WIC program is governed by 7 C.F.R. § 246.1 through .28 and § 22-12C-1, Ala.Code 1975, and rules promulgated thereunder by DPH.

Participants in the WIC program obtain nutritious foods from approved vendors by using a negotiable instrument provided to the participant by DPH. After exchanging the selected food items for the instrument, the vendor deposits the instrument in a bank as though it were a check. The bank then presents the instrument to DPH for payment.

In order to participate in the program, vendors enter into three-year contracts with DPH. DPH promulgates rules that explain the program and the terms and conditions of participation to the vendors. DPH provides the vendors with information regarding the penalties for violating the rules, and vendors receive training concerning compliance with the rules for redeeming the WIC instruments.

An instrument is valid for a given time and lists the foods for which it can be redeemed. Similar to the space on a common check in which the drafter writes the amount of the check, a WIC instrument has a “PAY EXACTLY” space. The vendor writes in the amount of the participant’s purchase, which is the amount to be paid to the vendor’s bank by DPH. The vendor contract requires that this space be filled in by the vendor in the participant’s presence and before the participant signs the instrument.

Federal regulations require the states to monitor vendors in order to assure that the vendors are charging the states the appropriate amount for food obtained by participants. The federal regulations require the states to conduct compliance buys at a minimum of 5% of the vendors in the state each year. 7 C.F.R. § 246.12(j)(4)(i). DPH defines compliance buys as being “covert investigations.” Rule 420-10-2-.05(d)3., Ala. Admin. Code (DPH). These investigations involve a DPH agent, posing as a participant, entering a vendor’s store with an instrument and selecting several items of food. The agent then transfers the instrument to the vendor and leaves the store with the purchased items. The agent documents the date and time of the buy, the types and quantities of items purchased, the amount charged, and a description of the cashier involved in the transaction. 7 C.F.R. § 246.12(j)(6)(ii). Once the instrument is presented for payment to DPH from the vendor’s bank, the agent compares the price listed on the instrument by the vendor with the listed price of the purchased items. If the amount listed on the instrument is more than the collective price of the purchased items, the vendor is determined to have overcharged DPH.

The applicable federal and state regulations provide that a pattern of overcharging for WIC foods is a violation that carries a mandatory three-year disqualification from the program. 7 C.F.R. § 246.12ffi(l)(iii); Rule 420-10-2-.05(e), Ala. Admin. Code (DPH). At the time of the investigation on which this appeal is focused, Alabama defined a “pattern” of vendor violations as a vendor’s “committing the same violation two (2) or more times during a compliance investigation which consistís] of at least four (4) [compliance] buys.” Rule 420-10-2-.05(f), Ala. Admin. Code (DPH).

DPH regulations require DPH to notify a vendor in writing of pending charges. That notice, in addition to describing the proposed adverse action, the cause of the action, and the effective date of the action, must advise the vendor of its rights to a full administrative hearing and its opportunity to present the case, to confront and cross-examine witnesses, to be represented by counsel, and to review the evidence before the administrative hearing. Rule 420-10-2-.06(b)l.(I), Ala. Admin. Code (DPH). Further, the notice must advise a vendor that disqualification from the WIC program may result in a disqualification from the Food Stamp Program and that such a disqualification is not subject to administrative or judicial review. Rule 420-10-2~.06(b)l.(ii), Ala. Admin. Code (DPH).

The record reveals that DPH entered into a WIC contract with the store in 1980. Before the incident at issue in this appeal, the store had never been charged with a WIC program violation. The store’s owners, Billy Lewis, Sr., and Billy Lewis, Jr. (“the owners”), completed all necessary training in the WIC program, as had some of the store’s employees. This training consisted of the trainee watching a video and receiving a DPH handbook pertaining to the WIC program and procedures. In addition to the WIC procedures, the handbook contains the administrative and appellate procedures available to a vendor charged with violating WIC guidelines. The record reveals that the owners most recently received those materials in August 2003.

On October 1, 2003, Donald Bird, a DPH investigator, conducted a routine monitoring visit at the store. During the monitoring visit, Bird examined two WIC instruments in the store’s cash register. That examination led Bird to believe that the store was overcharging DPH for food sold through the WIC program. Bird requested permission from his supervisor to begin a compliance investigation; his supervisor granted the request.

The investigation consisted of four compliance buys. The store does not challenge the factual details of the four compliance buys; therefore, the four compliance buys are briefly summarized as follows. DPH conducted the first compliance buy on October 15, 2003. Debra Brooks, the DPH agent acting as a participant, entered the store with a marked instrument in order to purchase several items. During the first compliance buy, a black female was working as cashier. Brooks selected the items, approached the cash register, and transferred the instrument to the cashier. The cashier calculated the price of the items, wrote the total price in the “PAY EXACTLY” space on the instrument, and had Brooks initial next to the total amount. Brooks left the store with the purchased items. Bird photographed the items, and Brooks and Bird filled out reports listing the purchased items, the price, a description of the cashier, and the time and date of the compliance buy. DPH found no violations during the first compliance buy.

Bird instructed Brooks to conduct the second compliance buy on October 22, 2003. Brooks entered the store with an instrument and selected the listed items. She took the items to the cash register and transferred the instrument to the cashier. During the second buy, a white male fitting the description of one of the owners was serving as cashier. The cashier did not complete the “PAY EXACTLY” portion of the instrument in Brooks’s presence, but he did have her sign the instrument. Brooks left the store with the items and completed the same procedure with Bird as she had after the first compliance buy. Based on the price tags affixed to the purchased items, DPH concluded that the total price for the WIC items Brooks obtained was $7.58. When the store’s bank presented the instrument to DPH for payment, the “PAY EXACTLY” space of the instrument contained “$24.04,” a difference of $16.46. DPH concluded that the second compliance buy resulted in an overcharge by the store.

Brooks conducted the third compliance buy on October 29, 2003. The same cashier as had been present during the second compliance buy served Brooks when she approached the cash register with the selected items. The cashier again failed to fill in the “PAY EXACTLY” space on the instrument in Brooks’s presence, but the cashier did have Brooks sign the instrument. After leaving the store with the purchased items, Brooks and Bird determined the price of the purchased items, and upon the store’s bank presenting the instrument to DPH, they concluded that the store had overcharged DPH by $15.57 on the third compliance buy.

Brooks conducted the fourth compliance buy on November 6, 2003. A female cashier properly filled in the “PAY EXACTLY” space in Brooks’s presence before having Brooks sign the instrument. DPH concluded that the store did not commit a violation during the fourth compliance buy.

Based on the store’s overcharging DPH twice during an investigation that involved four compliance buys, DPH charged the store with committing a pattern of overcharging; that charge carried a mandatory three-year disqualification from the WIC program. DPH notified the store of the charges by certified letter dated December 5, 2003. The “charge letter” described each of the four compliance buys, including a detailed account of the second and third compliance buys. The December 5, 2003, charge letter also listed the pending charges against the store. That list of charges contained the phrase “Category VI, items 3 and/or 5” in its description of the charges. “Item 3” refers to a pattern of overcharging for WIC items and “item 5” refers to a pattern of charging DPH for items not sold to the participant. Both charges carry a mandatory three-year disqualification. Rule 420-10-2-.05(e)3. and 5., Ala. Admin. Code (DPH).

The December 5, 2003, charge letter also advised the store of its right to request a pre-disqualification conference, as well as its right to examine the evidence and request an informal pre-disqualification hearing. The charge letter described the pre-disqualification conference as “an informal, fact-finding meeting.” The charge letter also informed the store that a disqualification from the WIC program would result in a disqualification from the Food Stamp Program and that disqualification from the Food Stamp Program would not be subject to an administrative hearing. The December 5, 2003, charge letter did not advise the store of its right to counsel or its right to cross-examine any adverse witnesses.

Shortly after receiving the December 5, 2003, charge letter, one of the owners met with Dennis Blair, DPH’s Director of Vendor Management in the WIC program. According to Blair’s testimony, Blair explained the appeals process to the owner and advised him of his right to an attorney. Blair testified that he told the owner “most [vendors facing pending charges] get lawyers, and I recommend it.” The store subsequently obtained an attorney.

In early January 2004, the store requested the informal pre-disqualification conference described in the December 5, 2003, charge letter. The informal pre-disqualification conference occurred on January 28, 2004. At the conference, DPH made its evidentiary file available to the store and its attorney. The hearing officer later determined that, at the January 28, 2004, conference, the store’s attorney had requested that the December 5, 2003, letter be changed or clarified with regard to “items 3 and/or 5.”

DPH sent another charge letter to the store on February 5, 2004. This second charge letter was substantially similar to the first charge letter, except that DPH changed the phrase “items 3 and/or 5” to “and item 3.” The second charge letter contained the following opening language, “as per [the store’s] request ... [DPH has] changed the wording in the following letter.” On the same day, DPH also sent the store another letter stating that, based on the evidence presented at the informal conference, DPH had decided to uphold its decision to disqualify the store from the WIC program for three years.

On February 10, 2004, the store sent a letter to DPH requesting a more definite and detailed statement relating to some of the pending charges. The store cited § 41 — 22—12(b)(4), Ala.Code 1975, as authority for making this request. Section 41-22-12(b)(4) provides that, if an agency has previously sent notice of pending charges but was unable to clearly state the details of the case, a party may request a more definite and detailed statement. DPH did not respond to that request.

DPH held a formal pre-disqualification hearing on March 31, 2004. At that hearing, DPH presented the testimony of Bird, Blair, and Brooks. The witnesses’ testimony focused primarily on the four compliance buys and the events leading up to the investigation. The store’s attorney vigorously cross-examined all three witnesses, but the store chose not to call any witnesses of its own.

From the outset of the administrative hearing, the store’s attorney objected to the proceedings based on his claim that DPH had violated its own rules by not including notice of the store’s right to counsel in the charge letters. The store’s attorney also objected to the second charge letter being issued because DPH had no procedure for issuing a second charge letter, a fact to which Bird admitted. Therefore, the attorney alleged, all of the subsequent actions of DPH were void. The hearing officer considered those objections and disagreed.

On June 25, 2004, the hearing officer issued a final order regarding the charges against the store. The hearing officer found that the store did, in fact, overcharge DPH for WIC food on two occasions during an investigation that included four compliance buys. The hearing officer noted that two overcharges amounted to a “pattern” of overcharges and that the DPH had no choice, under Rule 420-10-2-.05(f), Ala. Admin. Code (DPH), but to seek a three-year disqualification of the store from the WIC program. Because the hearing officer found that the store had committed a pattern of overcharges, he upheld the disqualification.

We note that, in his June 25, 2004, order upholding DPH’s decision to disqualify the store from the WIC program, the hearing officer found that “the store had adequate notice” because, “the store had legal counsel at the pre-disqualification conference; reviewed evidence; had counsel at the formal hearing; cross-examined witnesses; and was able to view any evidence offered.” With regard to the store’s objection regarding the change in the charge letter, the hearing officer found that “there was no substantial change in the charge letter, only clarification by [DPH] after the informal conference.” Further, the hearing officer noted that the opening language in the second charge letter suggested that the store’s attorney actually requested the “clarification.”

The store appealed to the Montgomery Circuit Court by filing a two-count complaint. Count one requested a review of the hearing officer’s findings. Count two alleged that Bird and Wendy Blackmon, DPH’s WIC Director, had, in their individual capacities, violated “the plaintiffs’ ” constitutional rights. Count two alleged both federal and state constitutional violations. After receiving briefs submitted by the parties and arguments by the parties’ attorneys, the circuit court dismissed count two and, regarding count one, affirmed the hearing officer’s decision. The store timely appealed to this court.

On appeal, the store argues that DPH did not comply with the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975 (“AAPA”), or DPH rules and, therefore, that the store’s disqualification from the WIC program is due to be reversed. This court reviews the trial court’s ruling with no presumption of correctness, “since that court was in no better position to review the order of [the hearing officer] than we are.” State Health Planning & Res. Dev. Admin. v. Rivendell of Alabama, Inc., 469 So.2d 613, 614 (Ala.Civ.App.1985). “Our standard of review of the agency decision is the same as that used by the circuit court: whether the administrative factfinder’s decision ‘was illegal, capricious, or unsupported by the evidence.’ Ala.Code 1975, § 38-7-9.” Kid’s Stuff Learning Ctr., Inc. v. State Dep’t of Human Res., 660 So.2d 613, 616 (Ala.Civ.App.1995). See also Delavan v. Board of Dental Exam’rs, 620 So.2d 13, 18 (Ala.Civ.App.1992). The AAPA, which governs judicial review of agency decisions, provides:

“(k) Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

§ 41-22-20(k), Ala.Code 1975 (emphasis added).

On appeal, the store advances three arguments pertaining to this issue. First, the store argues that DPH failed to follow statutory guidelines when the hearing officer did not render a decision within 30 days of the hearing. Section 41-22-16(a)(1), Ala.Code 1975, provides that an agency’s decision affecting a party’s substantial rights “shall be rendered within 30 days” of the administrative hearing. DPH conducted the formal hearing on March 31, 2004, and the hearing officer rendered his opinion on June 25, 2004. Thus, the store argues, DPH violated § 41-22-16(a)(l) and the disqualification is due to be set aside. Neither the caselaw nor the Commentary to § 41-22-16 supports this argument.

Our supreme court has held that § 41-22-16(a)(l) provides a mandatory time frame within which an agency must render its decision but that an agency’s failure to comply with this statute is reversible error only if the delay impaired a substantial right of the individual involved. Ex parte Nixon, 729 So.2d 277, 279-80 (Ala.1998). DPH allowed the store to continue participating in the WIC program throughout the appellate process. Any delay could be seen as furthering the store’s interest by lengthening the time of the store’s participation in the WIC program, rather than as impairing the store’s rights. Thus, the store has not demonstrated that a substantial right was impaired by the hearing officer’s failure to render a decision within 30 days of the hearing.

Moreover, the Commentary to § 41-22-16 does not support the store’s argument. In the Commentary, it is noted that “the time requirement imposed in subsection (a) of this section is intended to insure that orders and decisions are speedily rendered, which is to the advantage of all parties to the contested case.. Final orders must be rendered within 30 days unless all parties consent to delay.” (Emphasis added.) At the administrative hearing, the hearing officer informed the parties that “I am going to need more than 30 days to render a [decision]. Do I get everybody’s approval?” Because all parties consented on the record at the hearing, the store’s argument fails with regard to this issue.

The store also argues that the disqualification is due to be set aside because DPH failed to notify the store of its right to counsel in the December 5, 2003, charge letter. The store argues that this failure caused DPH to act contrary to the requirements of Rule 420-10-2-.06(b)l.(I), Ala. Admin. Code (DPH). A court can reverse an agency action if substantial rights of a party have been prejudiced because the agency action is in violation of statutory provisions or in violation of any pertinent agency rules. § 41-22-20(k)(l) and (3), Ala.Code 1975.

The store is correct in noting that the charge letter did not notify the store of its right to counsel as required by Rule 420-10-2-.06(b)l.(I), Ala. Admin. Code (DPH). However, the store has not demonstrated that that failure prejudiced any of its substantial rights; the store actually had legal representation throughout this process. A DPH official recommended to one of the owners that the store obtain legal representation soon after DPH sent the first charge letter but before the pre-disqualifi-cation conference was scheduled. As the hearing officer noted when considering this issue, the store was represented by counsel “at the pre-disqualification conference, reviewed evidence, had counsel at the formal hearing, cross-examined witnesses, and was able to view any exhibits offered.” The store presented this issue to the hearing officer, and he found that, despite DPH’s not precisely following Rule 420-10-2-.06(b)l.(I), Ala. Admin. Code (DPH), the store was not prejudiced. We agree. The store was vigorously represented throughout this process, and, therefore, it has failed to establish the prejudice required by § 41-22-20(k) to warrant a reversal of the disqualification.

The store next contends that by sending the February 5, 2004, charge letter, DPH acted outside its authority and, therefore, that the disqualification should be set aside. Bird admitted that there was no procedure for DPH’s issuance of a second charge letter, but the hearing officer determined that such a lack of procedure was not fatal to DPH’s case. The hearing officer found that the second charge letter substantially reflected the first charge letter. The only change involved “items 3 and/or item 5” being changed to “and item 3.” Both item three and item five are charges that carry a mandatory three-year disqualification. Rule 420-10-2-.05(e)3. and 5., Ala. Admin. Code (DPH). DPH did not add any charges against the store by sending the second charge letter; instead, a charge was actually removed. Thus, the store cannot establish that it was prejudiced by the change. As no prejudice occurred, the agency action is not due to be set aside under § 41-22-20(k).

Further, the record strongly suggests, and the hearing officer found, that DPH sent the second charge letter only in response to a request by the store. The second letter begins with “as per [the store’s] request, at the pre-disqualification conference ... [DPH has] changed the wording in the following letter.” In any event, the store has failed to show that it suffered any prejudice as a result of the change in the charge letter.

In support of all of these arguments, the store cites Stiff v. Alabama Alcoholic Beverage Control Board, 878 So.2d 1138 (Ala.2003), and Brunson Construction & Environmental Services, Inc. v. City of Prichard, 664 So.2d 885 (Ala.1995). In both cases, our supreme court held the actions of a state agency to be void because the agency did not follow the provisions of the AAPA. Stiff, 878 So.2d at 1146; Brunson, 664 So.2d at 893. Neither case is applicable in the present case, however. In both Stiff and Brunson, the plaintiffs demonstrated that a substantial right was prejudiced as a result of the agency’s failure to follow the AAPA. Stiff, 878 So.2d at 1146; Brunson, 664 So.2d at 888-89. As noted above, the store has failed to demonstrate that it suffered any prejudice as a result of DPH’s actions, and, therefore, we affirm as to this issue.

The store also argues on appeal that Bird and Blackmon, in their individual capacities, violated the store’s state and federal constitutional rights by causing DPH to act outside of its own rules and statutory guidelines. Specifically, the store contends that Bird and Blackmon violated the store’s rights by causing DPH to issue the second charge letter on February 5, 2004. A detailed discussion of this contention is pretermitted by our conclusion that the store failed to prove that it suffered prejudice as a result of DPH’s issuance of the second charge letter.

The store also contends that Bird and Blackmon, in their individual capacities, violated the store’s rights by causing DPH to fail to respond to the store’s request for a more definite statement. This contention cannot succeed. Section 41-22 — 12(b)(4), Ala.Code 1975, provides that, if an agency has previously sent notice of pending charges but was unable to clearly state the details of the case, a party may request a more definite and detailed statement. Both charge letters met the requirements of § 41 — 22—12(b)(4), by describing the time and place of the compliance buys, detailing the pending charges, and outlining the authority under which those charges were brought. When the store requested a more definite statement, DPH was not required by § 41-22-12(b)(4) to respond to that request because DPH had already met the statute’s requirements. The hearing officer addressed the issue of the store’s receiving appropriate notice and the record supports his findings that the store did, in fact, receive adequate notice.

Even if this contention were meritorious, the state-law claims against Bird and Blackmon in their individual capacities would be barred, because Bird and Blackmon would be shielded by state-agent immunity. Our supreme court in Ex parte Butts, 775 So.2d 173 (Ala.2000), enunciated the state-agent immunity test as follows:

“ ‘A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“ ‘(1) formulating plans, policies, or designs; or
“ ‘(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“ ‘(a) making administrative adjudications;
“ ‘(b) allocating resources;
“ ‘(c) negotiating contracts;
“ ‘(d) hiring, firing, transferring, assigning, or supervising personnel; or
“ ‘(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“ ‘(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“ ‘(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“ ‘Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“ ‘(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“ ‘(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.’ ”

Ex parte Butts, 775 So.2d 173, 177-78 (Ala.2000) (quoting the test articulated by a plurality of our supreme court in Ex Parte Cranman, 792 So.2d 392, 405 (Ala.2000)). The store has presented no evidence indicating that the actions of Bird and Black-mon were executed in a manner outside of their “formulating plans, policies, or designs,” or “exercising [their] judgment in the administration of a department or agency of government....” Butts, 775 So.2d at 177. Further, the store has presented no evidence indicating that Bird and Blackmon acted “maliciously, fraudulently, in bad faith, beyond [their] authority, or under a mistaken interpretation of the law.” Id. at 178. The state-law claims against Bird and Blackmon, in their individual capacities, fail.

To the extent that the store sued Bird and Blackmon in their individual capacities for alleged violations of the store’s due-process and equal-protection rights under federal law, Bird and Black-mon are entitled to qualified immunity. Ex parte Sawyer, 876 So.2d 433 (Ala.2003). In order for a plaintiff to overcome the protections of a public official’s qualified immunity, a public official must have been acting within his discretionary authority and, if so, the plaintiff must then demonstrate a lack of good faith on the part of the public official. Id. at 439. A plaintiff can establish this lack of good faith by demonstrating that the defendant public official’s actions “ ““ “violated clearly established constitutional law.” ”” ” Id. (quoting Couch v. City of Sheffield, 708 So.2d 144, 155 (Ala.1998) (quoting in turn other cases)). The record reflects that although Bird and Blackmon were, in fact, acting within their discretionary authority, the store has failed to demonstrate a lack of good faith on the part of Bird or Black-mon. We cannot say that the store has demonstrated error; therefore, we affirm.

AFFIRMED.

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

      . We note that DPH amended Rule 420-10-2-.05(f) in September 2004, to decrease the number of required compliance buys to three.

      . The record contains an alternative spelling of Mr. Bird's name. DPH refers to him as Donald Byrd, but his signature reflects that the correct spelling is "Bird.''

      . The instrument lists the name of the participant as “Amy Moore," Brooks’s alias throughout the investigation.

      .Brooks described the cashier as fitting the description of one of the owners. However, during her testimony at the pre-disqualification hearing, at which both owners were present, Brooks could not positively identify either owner as being the cashier during the compliance buy.