author: BRYAN, Judge.

text:
    Myrtice Nappier LORREN v. Barbara AGAN et al.
    2050520.
    Court of Civil Appeals of Alabama.
    Dec. 15, 2006.

      Emily C. Marks and B. Saxon Main of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellant.
    Stephen Bailey, Anniston, for appellees.
   BRYAN, Judge.

The plaintiff Myrtice Nappier Lorren (“Myrtice”) appeals the entry of a judgment as a matter of law (“the JML”) in favor of the defendants Barbara Agan, Charlotte Wells, Steve Lorren, and Regina Holloway. We affirm in part, reverse in part, and remand.

Myrtice and Edward Leon Lorren (“Edward”) were ceremonially married in 1983. The defendants in this case (“the children”) are Edward’s children from a marriage that preceded his 1983 marriage to Myrtice. In 1992, Myrtice and Edward divorced; however, they continued to live together until Edward died on July 24, 2003.

After Edward died, the children filed a will executed by Edward for probate by the Calhoun County Probate Court. By filing a complaint in the Calhoun Circuit Court, Myrtice contested the will on the ground that the children allegedly procured its execution by exerting undue influence on Edward and demanded a jury trial. She later amended her complaint to add a claim seeking a judgment declaring that she was Edward’s common-law wife when he died and demanded a jury trial with respect to all factual issues involved in that additional claim. The case proceeded to trial before a jury. At the close of Myrtice’s evidence, the children orally moved the trial court for a JML with respect to both of Myrtice’s claims, and the trial court granted the children’s motion and entered a JML in the children’s favor.

Following the entry of the JML, Myr-tice, pursuant to Rule 59, Ala. R. Civ. P., moved the trial court to grant her a new trial or, in the alternative, to alter, amend, or vacate the JML. The trial court denied Myrtice’s Rule 59 postjudgment motion, and Myrtice appealed to the supreme court. Thereafter, the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975, transferred Myrtice’s appeal to this court.

On appeal, Myrtice first argues that the trial court erred in entering a JML in favor of the children because, she says, the children’s oral motion did not specify the law or the facts entitling them to a JML as required by Rule 50(a)(2), Ala. R. Civ. P. In pertinent part, Rule 50(a)(2) states that a motion for a JML “shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.” The children’s motion for a JML consisted of their counsel’s orally stating, “I’d like to move for a directed verdict at this time, Your Honor.” The trial judge then stated the reasons why he thought the children were entitled to a JML and granted the children’s motion. The children’s counsel never specified the law or facts entitling the children to a JML. However, Myrtice did not object at trial to the children’s failure to specify the law and the facts entitling them to a JML — Myrtice made that objection for the first time in her postjudgment motion, which was not filed until after the trial was terminated and the jury was excused. “[A]n adverse party who does not object at trial to his opponent’s failure to state a specific groundf ] for a motion for a directed verdict will not be heard to complain of this lack of specificity on appeal.” Cox v. City of Freeman, Missouri, 321 F.2d 887, 891 (8th Cir.1963). Accordingly, we cannot reverse the JML on the basis of the failure of the children’s motion to specify the law and the facts entitling them to a JML.

Myrtice also argues that the trial court erred in entering a JML with respect to her claim that she was Edward’s common-law wife because, she says, she introduced sufficient evidence to create a jury question regarding that claim. In Lucy-Dawson v. Boyd-Hadley, 958 So.2d 876 (Ala.Civ.App.2006), this court stated:

“ ‘This court reviews the trial court’s action [on a motion for JML] using the same standard used by the trial court in initially granting or denying the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the issue is whether the nonmovant presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmov-ant must present “substantial evidence” in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a ruling on a motion for a JML, this court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Motion Indus., Inc. v. Pate, 678 So.2d 724 (Ala.1996).’”

958 So.2d at 878 (quoting City of Mobile v. Taylor, 938 So.2d 407, 409 (Ala.Civ.App.2005)).

In Gray v. Bush, 835 So.2d 192, 194 (Ala.Civ.App.2001), this court stated:

“In Alabama, recognition of a common-law marriage requires proof of the following elements: (1) capacity; (2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. Stringer [v. Stringer], 689 So.2d [194,] 195 [ (Ala.Civ.App.1997) ], quoting Crosson v. Crosson, 668 So.2d 868, 870 (Ala.Civ.App.1995), citing Boswell v. Boswell, 497 So.2d 479, 480 (Ala.1986). Whether the essential elements of a common-law marriage exist is a question of fact. Stringer, supra, citing Johnson v. Johnson, 270 Ala. 587, 120 So.2d 739 (1960), and Arrow Trucking Lines v. Robinson, 507 So.2d 1332 (Ala.Civ.App.1987). Whether the parties had the intent, or the mutual assent, to enter the marriage relationship is also a question of fact. See Mickle v. State, 21 So. 66 (1896).”

The evidence in this case regarding whether Myrtice was Edward’s common-law wife was in conflict; however, in reviewing the JML, we must view “ ‘the evidence in the light most favorable to [Myrtice] and entertainf ] such reasonable inferences as the jury would have been free to draw.’ ” Lucy-Dawson v. Boyd-Hadley, 958 So.2d at 878. Treated in that manner, the evidence before the trial court would have established the following material facts.

Edward wanted to divorce Myrtice in 1992 because he had heard that his veteran’s benefit would increase if he were single. Myrtice did not want a divorce, but Edward coerced her into consenting to the divorce.

Myrtice and Edward lived together in her house before the divorce. As soon as the divorce became final, Myrtice demanded that Edward leave her house and live somewhere else; however, Edward refused and said the divorce was just a piece of paper. Edward continued to live with Myrtice in her house until he died in 2003. Edward and Myrtice continued to sleep in the same bed and continued to engage in sexual relations after the divorce became final. When they engaged in sexual relations for the first time following the divorce, Myrtice told Edward that their having sexual relations after the divorce “killed the divorce,” and he responded that engaging in sexual relations did not kill the divorce. Edward died in Myrtice’s house, lying in the bed that he and Myrtice shared.

The people in the community who knew Myrtice and Edward considered them a married couple despite their divorce in 1992. Edward referred to Myrtice as his wife in his conversations with third parties. Edward paid his and Myrtice’s household expenses. Edward told Dean Humphry, a longtime friend of Edward’s, that, if Myr-tice died before Edward, Edward could declare that he and Myrtice had had a common-law marriage and he would get everything she owned.

The children do not dispute that the evidence established a jury question regarding the first and third essential elements of a common-law marriage as listed in Gray v. Bush, supra. However, the children argue that the trial court correctly granted the JML because, they say, Edward’s statement to the effect that his and Myrtiee’s engaging in sexual relations following the divorce did not “kill the divorce” tended to prove that Edward did not agree to engage in a marital relationship with Myrtice and, therefore, tended to disprove the existence of the second essential element of a common-law marriage. However, that statement by Edward was not the only probative evidence regarding whether Edward agreed to engage in a marital relationship with Myrtice. Myr-tice introduced circumstantial evidence from which a jury could reasonably infer that Edward did agree to engage in a marital relationship with Myrtice. That evidence included, among other things, the evidence establishing (1) that Edward refused to leave Myrtice’s house following the divorce and stated that the divorce was just a piece of paper; (2) that Edward cohabited with Myrtice and engaged in sexual relations with Myrtice for 11 years after the 1992 divorce; and (3) that Edward referred to Myrtice as his wife when speaking to third parties. Cf. Boswell v. Boswell, 497 So.2d 479, 480 (Ala.1986) (The putative common-law husband and common-law wife “continued to live together, holding themselves out as husband and wife, ” following the death of the man the putative common-law wife had been ceremonially married to when she first began cohabiting with the putative common-law husband, “thereby mutually agreeing to a common-law marriage.” (emphasis added)). At the very least, the circumstantial evidence tending to prove that Edward did agree to enter into a marital relationship with Myrtice was sufficient to create a jury question regarding the second essential element of a common-law marriage. Therefore, we must reverse the JML with respect to Myrtice’s claim that she was Edward’s common-law wife when he died and remand the case to the trial court for a new trial on that claim.

Although Myrtice states in the heading preceding one of the arguments in her brief on appeal that the trial court also erred in granting a JML with respect to her claim that the will was the product of undue influence, she does not present any argument in support of that statement. “ ‘When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996).” Tucker v. Cullman-Jefferson Gas Dist., 864 So.2d 317, 319 (Ala.2003). Therefore, we affirm the JML with respect to Myr-tice’s undue-influence claim.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . A directed verdict is now referred to as a judgement as a matter of law. See Rule 50, Ala. R. Civ. P.


source: Caselaw Access Project

author: CRAWLEY, Presiding Judge.

license: Public Domain

text:
    Alicia Haynes KAUFMANN v. Andrew Joseph KAUFMANN, Jr.
    2050810.
    Court of Civil Appeals of Alabama.
    Dec. 15, 2006.

      Alicia K. Haynes of Haynes & Haynes, P.C., Birmingham, for appellant.
    Jim Pino, Pelham, for appellee.
   CRAWLEY, Presiding Judge.

On September 15, 2004, Alicia Haynes Kaufmann (“the ex-wife”) and Andrew Joseph Kaufmann, Jr. (“the ex-husband”), were divorced. They each appealed that judgment to this court, whereupon this court affirmed the judgment of the trial court, without an opinion. Kaufmann v. Kaufmann [No. 2040410, May 19, 2006], — So.2d - (Ala.Civ.App.2006) (table). While that appeal was pending before this court, the ex-wife obtained a certificate of judgment from the clerk of the court in which the divorce judgment had been entered and obtained a process of garnishment as to the entire alimony-in-gross award her ex-husband had been ordered to pay in installments. In September 2005, the ex-husband moved the trial court to quash the process of garnishment, and the certificate of judgment entered by the clerk of the court. The trial court granted the motion to quash both the process of garnishment and the certificate of judgment, and it ordered the ex-wife to take the necessary action to withdraw the certificate of judgment in whatever counties it had been recorded so that any liens imposed on the ex-husband’s property would be removed.

The ex-wife filed a Rule 59, Ala. R. Civ. P., postjudgment motion; after the trial court denied the ex-wife’s postjudgment motion, the ex-wife timely appealed to this court.

I. Factual Background

The judgment divorcing the parties in 2004 contained the following relevant section:

“14. [The ex-husband] shall pay to [the ex-wife] the sum of $100,000.00 as alimony-in-gross which may be paid by [the ex-husband] to [the ex-wife] at the rate of $2,000.00 per month until paid in full.”

As noted above, the divorce judgment was affirmed by this court on appeal. In the present case, the trial judge, after hearing the arguments of counsel, entered the following order quashing the certificate of judgment and process of garnishment:

“1. That the Process of Garnishment issued by the [ex-wife] against South-Trust Bank as Garnishee is hereby quashed and the said Garnishee is hereby released from said Garnishment.
“2. That the Certificate of Judgment issued by the Clerk of this Court in the amount of $100,000 is hereby quashed and the Clerk of this Court is hereby ORDERED to withdraw and rescind said Certificate of Judgment.
“3. That the [ex-wife] is hereby ORDERED to take appropriate action in whichever counties the Certificate of Judgment has been recorded, to cause said Certificates of Judgment to be withdrawn so as to remove any lien upon the [ex-husband’s] properties.
“4. That upon the release of the funds withheld by the Garnishee in this matter, and the withdrawal of the Certificate of Judgment, the [ex-husband] shall forthwith pay all sums due and owing through the date of this Order to the [ex-wife] for alimony in gross together with interest accrued thereon through the date of the filing of the Process of Garnishment. The Court hereby reserves the issue of the amount of interest, if any, which the [ex-husband] owes the [ex-wife] for alimony which has accrued since the date of the filing of said Process of Garnishment.”

The trial court received no oral testimony regarding the ex-husband’s motion to quash the process of garnishment and the certificate of judgment.

II. Discussion

The ex-wife argues on appeal that the trial court erred in quashing the certificate of judgment and the process of garnishment and in ordering her to remove the recording of the certificate of judgment from the counties in which she had recorded it. She primarily relied upon two statutes in her postjudgment motion to the trial court, and she relies on the same statutes in her briefs to this court; those statutes are § 6-9-210 and -211, Ala.Code 1975. The trial court in this case applied the law to undisputed, stipulated facts. Our review therefore is de novo. American Res. Ins. Co. v. H & H Stephens Constr., Inc., 939 So.2d 868, 872 (Ala.2006).

“ ‘When reviewing a case in which the trial court sat without a jury and heard evidence in the form of stipulations, briefs, and the writings of the parties, this Court sits in judgment of the evidence; there is no presumption of correctness. Old Southern Life Ins. Co. v. Williams, 544 So.2d 941, 942 (Ala.1989); Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990). When this Court must determine if the trial court misapplied the law to the undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. State Dep’t of Revenue v. Garner, 812 So.2d 380, 382 (Ala.Civ.App.2001); see also Ex parte Graham, 702 So.2d 1215 (Ala.1997). In this case the trial court based its decision upon the stipulations, briefs, writings, and arguments of the parties’ attorneys. No testimony was presented. Therefore, we must sit in judgment of the evidence, and the trial court’s ruling carries no presumption of correctness.’ ”

American Res. Ins. Co., 939 So.2d at 873 (quoting Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 516-17 (Ala.2003)).

A. Jurisdictional Issues

First we must address the finality of the trial court’s judgment. In this case the trial court reserved ruling on the issue of the amount of interest to apply to the past-due amount of alimony-in-gross payments the ex-husband owed the ex-wife, and the trial court did not enter an exact amount specifying how much the ex-husband owed the ex-wife. Nevertheless, the trial court’s judgment is a final judgment.

A garnishment proceeding to enforce a previous judgment is a postjudgment proceeding requiring the filing of a separate docket fee. See § 12-19-75, Ala.Code 1975. Our supreme court, in Brown Shoe Co. v. Schaefer, 242 Ala. 310, 6 So.2d 405 (1942), stated that a judgment vacating and dismissing a garnishment was a final, appealable judgment. Importantly, § 6-6-464, AIa.Code 1975, provides that “[a]n appeal [from a garnishment proceeding] lies to ... the court of civil appeals ... at the instance of the plaintiff, the defendant, the garnishee, or the contestant, or claimant.” More recently, in Ex parte Walters, 646 So.2d 154, 155 (Ala.Civ.App.1994), this court stated that mandamus was an inappropriate remedy for the denial of a motion to quash several garnishments when an adequate remedy by appeal existed.

The trial court’s failure to award a specific amount of past-due alimony-in-gross payments, or to specify the interest to apply to those past-due payments, is inconsequential. Although the ex-wife requested that the trial court award a specific amount of past-due alimony and that it apply a specific interest rate to that award of past-due alimony in her postjudgment motion, and although she did at one point (before the judgment quashing the process of garnishment and the certificate of judgment was entered) move to show cause why the ex-husband had not paid the past-due alimony, the judgment is still final. Despite being made within the context of a motion to alter, amend, or vacate, the ex-wife’s requests require the initiation of a separate action and the payment of the appropriate fees. See, e.g., Kaufman v. Kaufman, 934 So.2d 1073, 1082 (Ala.Civ.App.2005) (“A motion or petition seeking the imposition of sanctions based on a finding of contempt initiates an independent proceeding that requires the payment of a filing fee.”); see also § 12 — 19—71(a)(7), Ala.Code 1975 (providing that a filing fee shall be collected “for cases filed in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order”). The trial court’s reference to the amount of past-due payments is not related to the garnishment proceeding and the issue whether the process of garnishment should be quashed; it is simply superfluous language.

B. Substantive Issues

The ex-wife argues that the provisions of § 6-9-210, Ala.Code 1975, and § 6-9-211, Ala.Code 1975, are applicable and that therefore the trial court was in error when it quashed the process of garnishment and the certificate of judgment and required the ex-wife to remove that certificate of judgment from the counties in which she had recorded it.

Section 6-9-210, Ala.Code 1975, provides, in part:

“The owner of any judgment entered in any court of this state or of the United States held in this state may file in the office of the judge of probate of any county of this state a certificate of the clerk or register of the court by which the judgment was entered, which certificate shall show the style of the court which entered the judgment, the amount and date thereof, the amount of costs, the names of all parties thereto and the name of the plaintiffs attorney and shall be registered by the judge of probate in a book to be kept by him for that purpose, which said register shall also show the date of the filing of the judgment.”

Section 6-9-211, Ala.Code 1975, provides, in part:

“Every judgment, a certificate of which has been filed as provided in Section 6-9-210, shall be a lien in the county where filed on all property of the defendant which is subject to levy and sale under execution, and such lien shall continue for 10 years after the date of such judgment.... The filing of said certificate of judgment, as provided in Section 6-9-210, shall be notice to all persons of the existence of the lien thereby created.”

The ex-wife points out that unless she has a certificate of judgment she may not be able to obtain complete satisfaction of the alimony-in-gross award. For example, our supreme court held in AmSouth Bank v. Holberg, 789 So.2d 833, 836-37 (Ala.2001), that it is not enough to file a copy of a judgment of divorce in probate court in order to create a lien on property allocated in that judgment. Instead, a party must file the certificate of judgment. Id. at 837.

Certainly, the ex-wife is entitled to a certificate of judgment; however, that certificate of judgment must reflect the actual terms of the divorce judgment. In regard to garnishment, § 6-6-391, Ala.Code 1975, provides, in part:

“To obtain such writ of garnishment, the plaintiff, his agent or attorney must make, before an officer authorized to administer oaths, and file, with the clerk of the court in which the action is pending or the judgment was entered, an affidavit stating the amount due from the defendant to the plaintiff, or his assignee, that process of garnishment is believed to be necessary to obtain satisfaction thereof and that the person to be summoned as garnishee is believed to be chargeable as garnishee in the case.”

(Emphasis added.) In this case the ex-wife alleged that the amount due to her was $106,752.43. That was not in fact how much the ex-husband owed her. The parties were divorced in September 2004. Thus, at the time the ex-wife filed her process of garnishment, in June 2005, the ex-husband would have owed at most $20,000 ($2,000 per month X 10 months). Although the ex-wife argues that unless she has a certificate of judgment she is unprotected in the event of the ex-husband’s death, that is not entirely true. It may be wise for the ex-wife to establish a lien on the ex-husband’s property by filing a proper certificate of judgment to ensure that she is paid what she is owed; however, we also note that an award of alimony in gross is vested and is a charge against the ex-husband’s estate should he die before payment is made in full. Powell v. Powell, 628 So.2d 832, 835 (Ala.Civ.App.1993) (citing Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974)). Understandably, the ex-wife desires a certificate of judgment to establish that her interest in the property has priority over the interest of other creditors, but she need not worry that the judgment awarding her alimony in gross will not survive the ex-husband’s death.

Generally, a debt, to be subject to garnishment, must be due absolutely, and without contingency. Druid City Hosp. Bd. v. Epperson, 378 So.2d 696, 698 (Ala.1979) (citing Sloss v. Glaze, 231 Ala. 234, 164 So. 51 (1935)). The ex-wife could, therefore, seek to obtain a garnishment as to the amount of past-due alimony-in-gross payments.

We note that our treatment of past-due alimony-in-gross payments is consistent with the manner in which past-due periodic alimony payments are treated in this state. See, e.g., Weaver v. Weaver, 523 So.2d 462, 464 (Ala.Civ.App.1988) (observing that a former spouse may use normal garnishment procedures when attempting to collect a judgment for an alimony ar-rearage, as well as for any subsequent past-due periodic-alimony payments).

III. Conclusion

The ex-wife in this case was not entitled to a garnishment of the ex-husband’s property in the amount of $106,752.43. She may obtain a certificate of judgment that reflects the actual terms of the divorce judgment and a garnishment for any amount past due. The trial court did not err in quashing the certificate of judgment, quashing the process of garnishment, or in ordering the ex-wife to withdraw the certificate of judgment from the counties in which it had been recorded.

AFFIRMED.

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

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

      . We also note that although several of the documents in the record are labeled with a ".01” case number, it appears that no such case number was in fact assigned to the garnishment proceedings.


author: PITTMAN, Judge. BRYAN, Judge,

text:
    Jack H. THOMAS, Jr. v. Elizabeth Thomas CAMPBELL.
    2050374.
    Court of Civil Appeals of Alabama.
    Dec. 15, 2006.

      Bruce B. Stone of Duck, Calhoun, Taylor & Stone, Fairhope, for appellant.
    James M. Scroggins, Daphne, for appel-lee.
   PITTMAN, Judge.

Jack H. Thomas, Jr. (“the father”), and Elizabeth Thomas Campbell (“the mother”) were divorced by a judgment entered by the Baldwin Circuit Court. During the course of the parties’ marriage, they had two children, Cathryn (born in February 1984) and Laura (born in November 1985); because the mother acted as the children’s primary custodian, the father was directed to pay child support. In September 2001, the trial court entered a judgment that was based upon an agreement reached by the parties in which the father’s child-support obligation was modified so as to require him to pay the mother $720 per month “until ... Laura ... completes her post secondary education.”

In June 2004, the father, appearing pro se, filed a pleading seeking termination of his child-support obligation as to Cathryn (whom he averred had entered into a marriage in May 2004) and modification of his child-support obligation as to Laura. The mother averred in her answer that no change in circumstances had occurred. The father subsequently retained counsel, who filed an amended complaint on his behalf averring that a change in circumstances had occurred and requesting, among other things, that the trial court modify his child-support obligation “to coincide with the present needs of the children, as well as [his] ability to pay.”

After an ore tenus proceeding, the trial court entered a judgment modifying, retroactive to June 2004, the father’s child-support obligation specified in its previous judgment. Specifically, the trial court ordered that each party would be required to pay one-half of the postminority educational expenses of the children, including “room and board” (which was “defined as a reasonable dorm plan” and a meal plan covering “the number of meals the ... children would be expected to need if living on campus” as stated in the “applicable school catalog”), until the earlier of (1) the date each child earned a bachelor’s degree or (2) May 31, 2007, as to Cathryn and May 31, 2008, as to Laura. The trial court placed the further conditions on the award that the children were to maintain at least a “C” grade average and were to undertake a full course load each academic session. The father appeals from that judgment.

Our standard of review was aptly stated in Lindsey v. Patterson, 883 So.2d 223, 225 (Ala.Civ.App.2003):

“When a trial court receives evidence ore tenus, as it did in this case, its judgment is presumed to be correct and will not be disturbed on appeal unless it is unsupported by the evidence so as to be plainly and palpably wrong. Bishop v. Pierce, 726 So.2d 663, 664 (Ala.Civ.App.1998). Also, the modification of a child-support order rests soundly within the trial court’s discretion and will not be disturbed on appeal absent a showing that the ruling is not supported by the evidence and, thus, is plainly and palpably wrong. Berryhill v. Reeves, 705 So.2d 505 (Ala.Civ.App.1997).”

The statement of the issues set forth in the father’s principal appellate brief sets forth two issues: whether the trial court acted outside its discretion in compelling him to pay one-half of Cathryn’s and Laura’s educational expenses (particularly room and board) and whether the trial court should have deemed Cathryn emancipated in light of her having entered into a marriage that was later annulled. However, the father’s argument asserts four discrete challenges to the trial court’s judgment: (1) an attack on Cathryn’s and Laura’s aptitude to succeed in college and the time-limitation provisions of the judgment; (2) an attack on the monetary requirements of the judgment as constituting an undue hardship; (3) an attack on the room-and-board provisions of the judgment; and (4) an attack on the award of support as to Cathryn in light of what the father terms her “emancipation” arising from her annulled marriage. Of those four arguments, only the first, second, and fourth comply even minimally with Rule 28(a)(10), Ala. R.App. P., which requires that argument in an appellant’s brief contain “citations to the cases, statutes, other authorities, and parts of the record relied on.” The father’s complete failure to cite authority in support of his third argument — that the trial court should not have included room and board in the scope of its postminority-support order — warrants pretermission of our consideration of the merits of that argument. See FabArc Steel Supply, Inc. v. Composite Constr. Sys., Inc., 914 So.2d 344, 354 (Ala.2005).

Before addressing the father’s remaining arguments, we note that the principles of Ex parte Bayliss, 550 So.2d 986 (Ala.1989), do not generally apply in the context of a parent’s contractual undertaking to provide postminority support to minor children that is incorporated into a binding judgment. As we “specifically point[ed] out” in Simpkins v. Simpkins, 595 So.2d 493, 495 (Ala.Civ.App.1991), which involved a petition to modify a contractual undertaking similar to that entered into by the parties in this case in 2001, “this is not a Bayliss fact situation or proceeding.” Rather, the trial court’s consideration of a petition to modify such an undertaking is governed by the principle that “an agreement between the parties fixing child support payments, when incorporated into a judgment, becomes merged into the judgment and thereby loses its contractual nature to the extent that a court of equity has the power to modify the decree when changed circumstances so justify.” Ralls v. Ralls, 383 So.2d 857, 859 (Ala.Civ.App.1980); see also Wesley v. Wesley, 627 So.2d 441, 444 (Ala.Civ.App.1993) (“[Ajwards of post-secondary child support may be modified, just as other awards of child support are modified.”).

However, in this ease, counsel for the father requested the trial court “to adjust [postminority support] according to Bay-liss,” and the trial court concluded that a change in circumstances had occurred. That court also announced at the close of the trial that the modification judgment that it intended to enter would be governed by Bayliss, and it referred to Bay-liss in its judgment; neither party has challenged that court’s determination that Bayliss applied to the father’s complaint. Thus, in deciding the father’s appeal, we will assume, without deciding, that Bayliss and its progeny govern the propriety of the trial court’s judgment.

We now consider the father’s fourth argument: whether the trial court could properly have deemed the mother to be entitled to further postminority educational support as to Cathryn despite Cathryn’s having entered into a marriage in May 2004 that was subsequently annulled in November 2004 by a judgment of the Baldwin Circuit Court. The father posits that because a duty to pay child support as to a minor child ends upon that child’s marriage or other emancipation, see Owens v. Owens, 412 So.2d 820, 821 (Ala.Civ.App.1982), and because a judgment declaring a minor child to be emancipated that is entered pursuant to § 26-13-1, Ala. Code 1975, has been held to preclude a subsequent award of Bayliss support as to that child, see B.A. v. State Department of Human Resources, 640 So.2d 961, 962 (Ala.Civ.App.1994), Cathryn’s marriage should be deemed to have emancipated her so as to nullify any duty on the father’s part to pay postminority support on her behalf. Acceptance of the father’s argument requires that this court agree with two distinct propositions: (1) that marriage of a child is an event that necessarily terminates the power of a trial court to continue an earlier award of postminority educational support; and (2) that a subsequent annulment of that marriage does not have any effect upon such a termination.

We need not address the validity of the first of those propositions because we are convinced of the invalidity of the second. The Alabama Supreme Court aptly noted in Henley v. Foster, 220 Ala. 420, 422, 125 So. 662, 664 (1930), that although an annulment proceeding is similar to a divorce proceeding in that both “relate to the marriage status,” those proceedings differ significantly in that a divorce judgment “fixes the future marital status” of the parties, whereas an annulment adjudicates the parties’ “past and present” marital status (emphases added). In other words, a judgment of divorce operates to terminate an extant marriage, but a judgment of annulment declares that what had appeared to be a valid marriage was never, in fact, a marriage at all: “An annulment establishes that the marital status never existed. So annulment and dissolution of marriage (or divorce) are fundamentally different: an annulment renders a marriage void from the beginning, while dissolution of marriage terminates the marriage as of the date of the judgment of dissolution.” Black’s Law Dictionary 99-100 (8th ed.2004).

In light of that fundamental distinction between a judgment of divorce and an annulment, it should not be surprising that American jurisdictions considering the effects of such judgments on a parent’s duty to pay child support have drawn a distinction between the two. A child whose marriage is terminated by divorce does not thereby become unemancipated so as to warrant the subsequent reimposition upon that child’s parent of a duty to make child-support payments. See, e.g., Laird v. Swor, 737 S.W.2d 601, 603 (Tex.Ct.App.1987), and State ex rel. Dep’t of Health & Human Res. v. Farmer, 206 W.Va. 249, 254-55, 523 S.E.2d 840, 845-46 (1999). In contrast, a child whose marriage is annulled may properly be deemed not to have been emancipated by the marriage so as to relieve that child’s parent of a duty to pay child support. See State ex rel. Dep’t of Econ. Sec. v. Demetz, 212 Ariz. 287, 291-92, 130 P.3d 986, 990-91 (Ct.App.2006); In re Marriage of Fetters, 41 Colo.App. 281, 584 P.2d 104 (1978); Eyerman v. Thias, 760 S.W.2d 187, 190 (Mo.Ct.App.1988) (annulment of child’s marriage during her minority “reinstated her status as an unemancipated minor child”); Fernandez v. Fernandez, 717 S.W.2d 781, 783 (Tex.Ct.App.1986); cf. In re Marriage of Walters, 238 Ill.App.3d 1086, 1092-93, 178 Ill.Dec. 176, 182-83, 604 N.E.2d 432, 438-39 (1992) (child’s marriage that was subsequently declared invalid held not to constitute an “emancipating event” so as to warrant termination of parent’s postminority-support obligation). In other words, “[cjourts have consistently decided that an annulled marriage allows [a court] to revoke emancipation status and reinstate [a] parental support obligation.” Chadwick N. Gardner, Note, “Don’t Come Cryin’ to Daddy! Emancipation of Minors: When Is a Parent ‘Free at Last’ from the Obligation of Child Support?” 33 U. Louisville J. Fam. L. 927, 942 (1995).

In this case, it is undisputed that Cathryn’s marriage was voided by a judgment of annulment rather than terminated by a divorce judgment. Therefore, as far as the law is concerned, that marriage does not exist and, what is more, never existed. It follows, then, that the trial court did not err in disregarding that marriage in determining the father’s postminority-support obligation. As to that issue, the trial court’s judgment is affirmed.

The father’s- remaining arguments focus on aspects of the postminority-sup-port judgment that, he says, violate principles that were enunciated in a post-Bayliss line of cases dating from Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990), in which we noted a parent’s “legal duty to provide or aid in providing a college education for his/her child if the child demonstrates the ability and willingness to attain a higher education and the parent has sufficient estate, earning capacity, or income to provide financial assistance without undue hardship to himself.” The father appears to contend that the postmi-nority-support award is inequitable in light of evidence adduced at trial concerning the children’s aptitude for college studies and his comparative ability to pay for those studies.

If we assume, as we have said we would assume, that Thrasher and other progeny of Bayliss are authoritative in this setting (in which the father has previously contracted to pay postminority support), the pertinent question regarding aptitude may be simply stated: did the mother demom strate that the children had the “ability to comprehend” the subject matter of their course of study “in such a way as to make at least average grades upon examination”? See Kent v. Kent, 587 So.2d 409, 411 (Ala.Civ.App.1991). The mother testified at trial that Cathryn had graduated from Daphne High School in 2002 and that she had completed the 2002-2003 and 2003-2004 academic years at Auburn University before transferring to Faulkner State Community College for three academic terms; at the time of trial, she had earned 98 credit hours and an approximate 3.0 grade-point average, although she had changed her major field of study from nursing to business. According to the mother, Laura left high school early, obtaining a GED certificate (the equivalent of a high-school diploma), and successively enrolled at two community colleges; at the time of trial, she had earned 48 credit hours and a 3.5 grade-point average. The mother testified that the children planned to enroll at the University of South Alabama in the upcoming fall term. Although the father notes that the children have not attended college during each fall, spring, and summer academic session after leaving high school, we cannot conclude on this record that the trial court erred in determining that the mother proved that the children had sufficient aptitude under Kent to warrant the continuation of the father’s duty to pay postminority educational support on their behalf. As to that issue, the trial court’s judgment is affirmed.

The father also contends that the trial court erred in determining the time limitation upon his support obligation. As we have noted, the trial court’s judgment establishes two alternate termination events — the award of a bachelor’s degree to each child or the arrival of particular dates certain — and states that the father’s postminority-support obligation will terminate upon the earlier event; thus, the father’s support obligation as to Cathryn will terminate no later than May 31, 2007, when she will be 23 years old, and his obligation as to Laura will terminate no later than May 31, 2008, when she will be 22 years old. This court has previously indicated that judgments awarding postmi-nority educational support pursuant to Bayliss should set “reasonable” time limitations, and we have reversed judgments that are so open-ended that they do not “prevent the [pertinent child] from taking only one or two classes each term and prolonging [an] undergraduate career, as well as the [parent’s] financial obligation, for well beyond four years.” Kent, 587 So.2d at 413. However, even assuming, as we do, that Bayliss and its progeny apply here, we cannot agree with the father’s contention that the trial court has not placed reasonable time limitations on his support obligation in this case simply because the judgment allowed each child five years to complete her studies. See Lynn v. Lynn, 772 So.2d 1189, 1192 (Ala.Civ.App.2000) (determining that judgment providing for payment of postminority support pursuant to Bayliss until pertinent child reached the age of 23 “limit [ed] the support to a reasonable period”). We thus affirm the trial court’s judgment as to this issue.

The final argument to be addressed is whether the trial court imposed an “undue hardship” upon the father in ruling that he would be responsible for one-half of the children’s postminority educational expenses, which that court expressly determined would include expenses of a “reasonable dorm plan” and “the number of meals the ... children would be expected to need if living on campus.” Although the mother testified that each child would incur aggregate expenses of $2,700 each school term at the University of South Alabama for tuition and fees, the trial court was not presented any evidence of the children’s room-and-board costs such that the complete extent of the father’s monetary responsibility can be ascertained; indeed, the trial court’s judgment states that those amounts are to “be determined by consulting the applicable school catalog.”

“It is essential for the trial court to consider evidence pertaining to the amount required for books, tuition, and actual costs of room and board in order to make a determination regarding the amount a parent should contribute without experiencing undue hardship.” Stanford v. Stanford, 628 So.2d 701, 703 (Ala.Civ.App.1993) (emphasis added); accord, e.g., Penney v. Penney, 785 So.2d 376, 379 (Ala.Civ.App.2000); Gordon v. Gordon, 804 So.2d 241, 244 (Ala.Civ.App.2001); and Hertzberg v. Gainey, 855 So.2d 561, 565 (Ala.Civ.App.2003). Although we understand the trial court’s efforts to remedy the lack of proof at trial by suggesting a “gap filler” mechanism for ascertaining the father’s support obligation as to room and board, we note that “[i]n child support cases the trial court is bound by the legal evidence or lack of it,” and “[i]t may not speculate on the ability of the parties to pay nor on the needs of the children.” Berry v. Berry, 579 So.2d 654, 656 (Ala.Civ.App.1991).

Because we cannot determine from the record the total extent of the father’s financial obligation, we cannot confirm that the trial court’s judgment does not subject the father to an undue hardship. Therefore, we are forced to agree with the father that the trial court’s judgment must be reversed on that ground alone. The cause is remanded for further proceedings. On remand, the trial court should take sufficient evidence to ascertain and declare the educational expenses already incurred, and those yet to be incurred, by the children — including the amount of actual room-and-board expenses incurred by the children while living off campus or the cost of room and board that the children would incur if they lived on campus — and “should determine whether requiring the father to pay 50 percent, or some other fraction, of those actual expenses or [substituted on-campus] costs would constitute an undue hardship upon him.” Gordon, 804 So.2d at 245; see also Hertzberg, 855 So.2d at 565-66.

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

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

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

BRYAN, J., concurs in part and concurs in the result in part, with writing.

BRYAN, Judge,

concurring in part and concurring in the result in part.

Insofar as the main opinion holds that the trial court did not err in disregarding the marriage of one of the children in determining the father’s postminority-sup-port obligation, I concur in the result only. In all other respects, I concur in the main opinion.

      . We note that to the extent that Ralls held that "a court does not have the power, in the absence of an agreement, to order a parent to support an adult child,” 383 So.2d at 859, Bayliss expressly overruled Ralls. Bayliss, 550 So.2d at 994.

      . The father admitted at trial that both children were "very smart.”

      . We note that although the children planned to live off campus in a home provided by the mother and her husband, a trial court has the discretion to determine, as the trial court did in this case, that a postminority-support obligation as to a student's housing should instead be based upon the less expensive cost of an on-campus dormitory room. See Gilliam v. Prater, 785 So.2d 382, 385 (Ala.Civ.App.2000) (plurality opinion). The same principle would, arguably, apply to meals.


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

text:
    Ex parte FLUOR CORPORATION (In re Ledger Morrisette v. Fluor Corporation).
    2050724.
    Court of Civil Appeals of Alabama.
    Dec. 22, 2006.

      Joseph H. Driver and D. Greg Dunagan of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner.
    Frederick P. Gilmore of Gilmore Law Office, Grove Hill, for respondent.
   BRYAN, Judge.

Fluor Corporation petitions this court for a writ of mandamus directing the trial court to dismiss Ledger Morrisette’s workers’ compensation action against Fluor. We grant the petition and issue the writ.

Morrisette, an Alabama resident, sued Fluor for workers’ compensation benefits, pursuant to § 25-5-1 et seq., Ala.Code 1975. Morrisette’s complaint alleged that he had been injured in an accident while working for Fluor in Georgia. Fluor filed a motion to dismiss and a supporting memorandum, asserting, among other things, that the trial court lacked subject-matter jurisdiction over Morrisette’s claim for benefits based on an out-of-state injury, pursuant to § 25 — 5—35(d), Ala.Code 1975. Fluor attached to its motion various documents relating to Morrisette’s employment with Fluor, including Morrisette’s application for employment with Fluor, a State of Georgia “employee’s withholding allowance certificate,” and a Georgia Board of Workers’ Compensation “employer’s first report of injury” completed by Fluor in relation to Morrisette’s injury.

Morrisette filed a response to Fluor’s motion to dismiss to which he attached various documents, including his affidavit. In his affidavit, Morrisette stated, in pertinent part:

“2.) In or about August of 2005,1 was contacted at my home by a representative of Fluor Corporation.... I was willing to come to work with Fluor Corporation beginning at the Progress Energy Plant located in Arden, North Carolina. In that conversation, I agreed to accept $20.00 per hour, plus $50/day per diem for travel expenses.
“4.) After the offer was made, I packed my bags and belongings and traveled to Arden, North Carolina to begin working.
“5.) Previously on many occasions, I had worked for Fluor Corporation as a iron worker at numerous locations.
“6.) While at the North Carolina location, Fluor Corporation decided that they needed to transfer me and my brother-in-law to another location at the Georgia Power Plant, located in Newman, Georgia.
“7.) I was transferred ... from Arden, North Carolina to Cowetta County, Georgia on or about October 3, 2005.
“8.) While arriving in Newman, Georgia, it was recommended ... that I stay at a hotel ... in Newman, Georgia, where I was injured. While there, I was charged the amount of $250/week for my lodging, based upon a seven day weekly rental.
“9.) This was the first time in all my years working with Fluor Corporation that I was ever transferred to or worked at the Georgia Power Plant ... in Newman, Georgia.
“10.) There has been no break in my employment or any change in my rate of pay with Fluor Corporation from the time I left Alabama until the time I was injured in Newman, Georgia.”

Although Morrisette stated that there was no break in his employment with Fluor after leaving Alabama, Fluor attached to its motion to dismiss an application for employment signed by Morrisette on October 3, 2005, the approximate date he was transferred from the North Carolina work site to the Georgia work site. It appears that Morrisette worked for Fluor only in North Carolina and Georgia after contracting to work for Fluor in approximately August 2005.

On May 19, 2006, the trial court entered an order denying Fluor’s motion to dismiss. Fluor subsequently filed with this court a petition for a writ of mandamus directing the trial court to dismiss Morrisette’s action for lack of subject-matter jurisdiction, pursuant to § 25 — 5—35(d), Ala.Code 1975.

“[M]andamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Horton, 711 So.2d 979, 983 (Ala. 1998).

Fluor argues that the trial court erred by denying Fluor’s motion to dismiss because, Fluor says, the trial court did not have subject-matter jurisdiction over Mor-risette’s workers’ compensation claim pursuant to § 25 — 5—35(d), Ala.Code 1975. Section 25-5-35(d), Ala.Code 1975, provides:

“If an employee, while working outside of this state, suffers an injury on account of which he or, in the event of his death, his dependents, would have been entitled to the benefits provided by [Article 2] and Article 3 of this chapter [Title 25, Chapter 5, ‘Workers’ Compensation,’ Ala.Code 1975, §§ 25-5-1 through 25-5-340] had such injury occurred within this state, such employee or, in the event of his death resulting from such injury, his dependents, shall be entitled to the benefits provided by [Article 2] and Article 3 of this chapter, provided that at the time of such injury:
“(1) His employment was principally localized in this state;
“(2) He was working under a contract of hire made in this state in employment not principally localized in any state;
“(3) He was working under a contract of hire made in this state in employment principally localized in another state whose workmen’s compensation law was not applicable to his employer; or
“(4) He was working under a contract of hire made in this state for employment outside the United States.”

(Emphasis added.)

The trial court concluded that it had subject-matter jurisdiction over Morri-sette’s workers’ compensation claim pursuant to § 25-5-35(d)(2), ie., the trial court found that Morrisette’s contract for hire was made in Alabama and that Morri-sette’s employment with Fluor was not principally localized in any state. Fluor argues that Morrisette’s employment with Fluor was principally localized in Georgia and that therefore Morrisette did not satisfy the requirements under § 25-5-35(d)(2) for bringing a workers’ compensation claim for an out-of-state injury. We agree.

Section 25 — 5—35(b), Ala.Code 1975, provides:

“For the purposes of this section, a person’s employment is principally localized in this or another state when his employer has a place of business in this or such other state and he regularly works at or from such place of business, or if he is domiciled and spends a substantial part of his working time in the service of his employer in this or such other state.”

Pursuant to § 25-5-35(b), Fluor had “a place of business” in Georgia. ■ In Ex parte Fluor Contractors International, 772 So.2d 1157 (Ala.2000), our supreme court concluded that the employment of an employee injured at a construction site in Tennessee was principally localized-in that state pursuant to § 25 — 5—35(d)(2). In so doing, the supreme court implicitly found-that a South Carolina company that operated the construction site in Tennessee maintained a “place of business” in Tennessee under § 25-5-35(b). The court in Ex parte Fluor Contractors International stated:

“In order to ascertain the meaning of a-statute, we look to the plain meaning of the words written by the Legislature. Johnson v. Price, 743 So.2d 436, 438 (Ala.1999). The words in § 25-^5 — 35(b), given their plain meaning, do. not require that, in order for a worker’s employment to be ‘principally localized’ within a particular state, the employer’s headquarters or corporate office be in that state, but merely that the employee work for that employer at a designated place within that state. ”

772 So.2d at 1159 (emphasis added). According to Fluor’s “first report of injury,” Fluor operated as a “general contractor” working on a power plant in Georgia. Therefore, Fluor had a “place of business” in Georgia, pursuant to § 25 — 5—35(b). Ex parte Fluor Contractors Int’l, supra.

In Sims v. Leland Roberts Construction, Inc., 671 So.2d 106 (Ala.Civ.App.1995), this court discussed whether an Alabama employee who alleged that he had been injured while working on a pipeline in Indiana “regularly worked” in . Indiana pursuant to § 25-5-35(b). The employee sued his employer for workers’ compensation benefits pursuant to the Alabama Workers’ Compensation Act. Id. at 107. The trial court dismissed the employee’s action because the trial court found that the employee’s employment was principally localized in Indiana. Id. at 108. On appeal, the employee in Sims argued that his employment was not principally localized in Indiana because he had worked on the pipeline in both Ohio and Indiana. Id. The employee resided in a hotel in Indiana during the four months that he worked on the pipeline. Id. In concluding that the employee’s employment at the time of his alleged injury was principally localized in Indiana, this court stated that “[d]espite the fact that [the employee] ‘sometimes’ worked in Ohio and was available for work there and possibly other states, it is clear that [the employee’s] employer had a place of business in Indiana and that [the employee] regularly worked at or from that place of business.” Id. at 109.

Similarly, " Morrisette regularly worked at Fluor’s place of business in Georgia at the time of his alleged injury. Morrisette argues that he did not regularly work for Fluor in Georgia because he had been transferred from the North Carolina work site to the Georgia work site less than two weeks before his injury, he had not previously worked at the Georgia work site, and he had worked for Fluor at numerous other locations in the past. However, “the time of [the] injury,” § 25-5 — 35(d), Ala.Code 1975, is the relevant time for determining where an employee regularly works for the purpose of determining where the employee’s employment is principally localized. § 25~5-35(b), Ala. Code 1975. Although Morrisette had previously worked for Fluor outside of Georgia, at the time of his alleged injury, Mor-risette regularly worked for Fluor in Georgia. Morrisette appears to have been working for Fluor exclusively in Georgia at the time of the alleged injury, and his affidavit stated that he had been “transferred” from the job -site in North Carolina to the job site in Georgia. Furthermore, Morrisette was residing in a Georgia hotel on a weekly basis when he sustained his alleged injury.

The regular nature of Morrisette’s work in Georgia is also evidenced by his completion of a State of Georgia “employee’s withholding allowance certificate” when he began to work for Fluor in Georgia. On the withholding-allowance certificate, Mor-risette indicated that he was a resident of Alabama. Section 48 — 7—1 (11)(A), Ga.Code Ann. (2002), defines a “taxable nonresident,” in pertinent part, as “[e]very individual who is not otherwise a resident of this state for income tax purposes and who regularly and not casually or intermittently engages within this state ... in employment ... for financial gain or profit.” (Emphasis added.)

Because Fluor operated a place of business in Georgia and Morrisette regularly worked at that place of business, Morri-sette’s employment was principally localized in Georgia at the time of his alleged injury. § 25 — 5—35(b), Ala.Code 1975. Because Morrisette’s employment was principally localized in Georgia at the time of his alleged out-of-state injury, § 25-5-35(d)(2) does not grant the trial court subject-matter jurisdiction over Morrisette’s workers’ compensation claim.

Because Morrisette’s employment was principally localized in Georgia, he could only recover pursuant to § 25 — 5—35(d)(3). For Morrisette to recover pursuant to § 25-5-35(d)(3), the workers’ compensation law of Georgia must not be applicable to Fluor. By completing a Georgia Board of Workers’ Compensation “employer’s first report of injury,” Fluor indicated that it was subject to Georgia’s workers’ compensation laws. See Ga.Code Ann. § 34-9-12(a) (2004) (stating that “[e]very employer subject to the provisions of this chapter [Title 34, Chapter 9, ‘Workers’ Compensation,’ Ga.Code Ann., §§ 34-9-1 through 34-9-421] relative to the payment of compensation shall hereafter keep a record of all injuries, fatal or otherwise, received by his employees in the course of their employment on blanks approved by the board. Within ten days after notice ... of the occurrence of an injury to an employee requiring medical or surgical treatment or causing his absence from work for more than seven days, a report thereof shall be made in writing and mailed to the board on blanks to be procured from the board for this purpose.”). We note that the “employer’s first report of injury” completed by Fluor also listed Fluor’s workers’ compensation insurance carrier.

In arguing that the petition for a writ of mandamus should be denied, Morrisette relies heavily on Ex parte Robinson, 598 So.2d 901 (Ala.1991). The only issue addressed by the main opinion in Ex parte Robinson was whether, pursuant to § 25-5 — 35(d)(2), Ala.Code 1975, the employee’s contract for hire was made in Alabama; the main opinion did not address where, pursuant to § 25 — 5—35(d)(2), the employee’s employment was principally localized. Because the controlling issue in the present case is where Morrisette’s employment was principally localized, Ex parte Robinson is inapplicable.

Because the trial court had no subject-matter jurisdiction to hear Morrisette’s workers’ compensation claim, the trial court erred by denying Fluor’s motion to dismiss. Accordingly, we grant the petition for a writ of mandamus, issue the writ, and direct the trial court to enter a judgment dismissing the action.

PETITION GRANTED; WRIT ISSUED.

THOMPSON, J., concurs.

PITTMAN, J., concurs specially, with writing.

CRAWLEY, P.J., concurs in the rationale in part and concurs in the result, with writing.

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

PITTMAN, Judge,

concurring specially.

In footnote 1, the main opinion cites Ex parte Tri-State Motor Transit Co., 541 So.2d 557 (Ala.Civ.App.1989), as “implicitly” authorizing the review of the denial of Fluor’s motion to dismiss in this case. One of the recognized “narrow exceptions” to the principle that mandamus will not lie from the denial of a Rule 12(b), Ala. R. Civ. P., motion to dismiss is that “[t]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.” Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003). . A claim seeking an award of benefits under the Alabama Workers’ Compensation Act, Ala. Code 1975, § 25-5-1 et seq., for an injury occurring while the employee worked outside Alabama is not within the cognizance of our trial courts unless one of the conditions specified in § 25-5-35(d) applies; indeed, Alabama courts lack subject-matter jurisdiction to entertain such a claim. Ex parte Fluor Contractors Int’l, 772 So.2d 1157, 1159-60 (Ala.2000).

Although Ex parte Tri-State predates both Ex parte Liberty National and Ex parte Fluor Contractors, its “implicit” re-viewability conclusion is wholly consistent with them. I therefore concur in the main opinion.

CRAWLEY, Presiding Judge,

concurring in the rationale in part and concurring in the result.

I concur in the conclusion reached by the majority that the circuit court lacks subject-matter jurisdiction over Morri-sette’s claim under Ala.Code 1975, § 25-5-35(d)(2). I write specially to note that Fluor argued in its motion to dismiss and again in its petition for a writ of mandamus that the circuit court lacked subject-matter jurisdiction over Morrisette’s claim even under Ala.Code 1975, § 25-5-35(d)(3), because, it said, Fluor is covered by Georgia workers’ compensation law. Morrisette did not dispute that fact in his response to Fluor’s motion or in his response to Fluor’s petition. Thus, I agree with the conclusion that the circuit court lacks subject-matter jurisdiction under § 25-5-35(d)(3). I therefore concur in the issuance of the writ.

      . " ‘Subject to certain narrow exceptions ..., the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.’ Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761 (Ala.2002) (citing Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000)).” Ex parte Alloy Wheels Int’l, Ltd., 882 So.2d 819, 822 (Ala.2003). In Ex parte Tri-State Motor Transit Co., 541 So.2d 557 (Ala.Civ.App.1989), this court implicitly established such an exception when it reviewed, by petition for the writ of rrianda-mus, the denial of an employer's motion to dismiss grounded on an assertion that the trial court, pursuant to § 25-5-35, Ala.Code 1975, lacked subject-matter jurisdiction to hear the case.


author: MURDOCK, Judge.

text:
    BUCO BUILDING CONSTRUCTORS, INC. v. MAYER ELECTRIC SUPPLY COMPANY, INC.
    2050464.
    Court of Civil Appeals of Alabama.
    Dec. 22, 2006.

      Kori L. Clement and Stephanie White Schmidt of Hare, Clement & Duck, P.C., Birmingham, for appellant.
    Greggory M. Deitsch and R. Ryan Daugherty of Sirote & Permutt, P.C., Birmingham, for appellee.
   MURDOCK, Judge.

Buco Building Constructors, Inc. (“Buco”), appeals from a summary judgment that the Jefferson Circuit Court, Bessemer Division, entered in favor of Mayer Electric Supply Company, Inc. (“Mayer”). Because the record does not reflect that Buco has standing to appeal, we dismiss.

Mt. Pilgrim Missionary Baptist Church (“the church”) hired Buco to serve as general contractor in the construction of a family life center for the church (“the project”). Buco contracted with J & J Electric Company, Inc. (“J & J”), to perform electrical work on the project. J & J used Mayer as a supplier on the project.

On June 14, 2004, Mayer served Buco and the church with a notice of intent to claim a materialman’s lien. Mayer stated in the notice that it was owed $36,217.82 for materials supplied for the project. On August 6, 2004, Mayer filed a “Verified Statement of Lien” against the church’s property in the Jefferson County Probate Court.

On August 24, 2004, Mayer sued J & J, alleging nonpayment of goods that Mayer had supplied to J & J related to the project. Mayer also named J & J’s president, Jerry Davis, Jr., as a defendant, alleging that he had guaranteed this debt. In addition, Mayer named Buco and the church as defendants. As to J & J and Davis, Mayer sought money damages; as to the church, Mayer sought an order perfecting its lien on the church’s property and ordering the sale of that property for the payment of the lien. On October 8, 2004, Buco filed a motion to dismiss in which it argued that Mayer had failed to state a claim against it. The trial court denied the motion.

On October 22, 2004, J & J answered the complaint and asserted a cross-claim against Buco for breach of contract, alleging that Buco still owed it $102,009.19 for work performed on the project. J & J later filed a cross-claim against the church, asserting a lien on the church’s property for the unpaid balance it claimed Buco owed it. Buco eventually filed a cross-claim against J & J, in which it asserted that it incurred costs in the amount of $100,828 due to J & J’s breach of contract.

On November 22, 2004, based on its contract with J & J, Buco moved the trial court to stay the proceedings and to compel arbitration. On December 7, 2004, Mayer filed a response to Buco’s motion to compel arbitration in which Mayer argued that it could not be forced to arbitrate its claims because it did not have a contractual relationship with Buco.

On December 17, 2004, Buco executed a “Release of Lien Bond” that provided:

“KNOW ALL MEN BY THESE PRESENT: That we, Buco Building Constructors, Inc. as Principal, and St. Paul Fire and Marine Insurance Company, a corporation organized under the laws of the State of MN, and authorized to transact Surety Business in the State of AL as Surety, are held and firmly bound unto Mayer Electric Supply Company, Inc. as Obligee in the sum of Thirty Six Thousand Two Hundred Seventeen Dollars and 82/100 ($36,217.82) lawful money of the United States of America, for the payment of which, well and truly to be made, we bind ourselves, our heirs, legal representatives, successors and assigns, jointly and severally firmly by these presents.
“WHEREAS, The Principal entered into a contract with Mt. Pilgrim Baptist Church of Fairfield, Alabama “WHEREAS, Mayer Electric Supply Company, Inc. has filed a notice of Claim of Lien in Jefferson County, AL, in the Amount of Thirty Six Thousand Two Hundred Seventeen Dollars and 82/100 ($36,217.82) for materials furnished for Mt. Pilgrim Family Life Center, Grasselli Road, Fairfield, AL, Jefferson County, AL
“AND WHEREAS, The Principal desired to obtain the release of the aforementioned lien and has requested the Obligee to accept an indemnity bond conditioned as set forth in lieu thereof.
“NOW, THEREFORE, the condition of this obligation is such, that if the said Buco Building Constructors, Inc. shall pay any judgment that may be rendered against it by any court of competent jurisdiction, in regards to said lien, then this obligation to be void, otherwise to remain in full force and effect.”

Although, as noted, the bond provided that Buco had requested that Mayer accept an indemnity bond in lieu of Mayer’s lien on the church’s property, there is no indication in the record that Mayer did so.

On December 21, 2004, Buco renewed its motion to dismiss, arguing that “Mayer failed to state any cause of action against Buco in its complaint” and that, because, when it objected to Buco’s motion to compel arbitration, Mayer admitted that there was not a contractual relationship between Buco and Mayer, “there remain[ed] no basis for Mayer’s claims against Buco.”

On December 22, 2004, Mayer filed a motion for a summary judgment against J & J and Davis. On May 22, 2005, after a hearing on the motion, the trial court granted the motion and entered a summary judgment in Mayer’s favor. In the judgment, the trial court: (1) awarded Mayer a money judgment against J & J and Davis in the amount of $36,217.82, plus interest in the amount of $5,661.75, and an attorney’s fee of $1,645.50; (2) ordered that Mayer’s lien against the church’s property be perfected; and (3) ordered the circuit clerk to sell the church’s property for the payment of the hen. The trial court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.

On June 8, 2005, Buco filed a motion to alter, amend, or vacate the judgment. Buco argued that the trial court’s judgment improperly awarded more relief to Mayer than Mayer had sought in its motion for a summary judgment. Buco also argued that the sale of the church’s property for the satisfaction of Mayer’s lien before resolution of Buco’s and J & J’s cross-claims against each other would deprive Buco and the church of their due-process rights. The trial court denied Buco’s motion. Buco appeals.

Although neither party formally raises the issue of jurisdiction, this court is obligated to consider its jurisdiction and to notice the lack thereof ex mero motu. See Goodyear Tire & Rubber Co. v. Moore, 900 So.2d 1239, 1240 (Ala.Civ.App.2004). “ ‘Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.’ National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). ‘ “[L]ack of standing [is] a jurisdictional defect.” ’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999) (quoting Tyler House Apartments, Ltd. v. United States, 38 Fed.Cl. 1, 7 (Fed.Cl.1997)).” Ex parte Fort James Operating Co., 871 So.2d 51, 54 (Ala.2003).

In the present case, Buco contends that its interests are adversely affected by that aspect of the judgment ordering the sale of the church’s property. In its appellate brief, Buco asserts:

“[The] purported perfection or establishment of a lien on the [church’s] property and the sale of the property clearly will have an effect on the rights of [the church] and Buco, even though no remedy against [the church] or Buco was requested in the motion for summary judgment.... [The church], as owner of the property will have an obvious detriment, and Buco, which executed a release of lien [bond] ... will in turn be required to pay the amount of the lien.”

Although, as noted, the record indicates that a representative of Buco signed a document entitled “Release of Lien Bond,” the record does not demonstrate that this bond was effectively substituted as security for the satisfaction of Mayer’s claims in place of Mayer’s lien on the church’s property.

Alabama Code 1975, § 35-ll-233(b), sets forth the manner by which a bond may be substituted for a lien as collateral for the payment of a debt owed to, among other things, an unpaid supplier of materials to a construction project. That statute provides, in relevant part:

“(b) Any lien claimed on real property under this division may be transferred by any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed, from such real property to other security by first filing with the court in which the action is brought, a copy of the lien which has been duly filed and recorded as required by law, and by either:
“(1) Depositing with the court in which the action is brought a sum of money; or
“(2) Filing with the court a bond executed as surety by a surety insurer licensed to do business in this state, either of which shall be in an amount equal to the amount demanded in such claim of lien plus interest thereon at eight percent per year for three years plus $100.00 to apply on any court costs which may be taxed in any proceeding to enforce said lien.
“Such deposit or bond shall be conditioned to pay any judgment or decree which may be rendered for the satisfaction of the lien for which such claim of lien was recorded and costs not to exceed $100.00. Upon making such deposit or filing such bond the court shall make and record a certificate showing the transfer of the lien from the real property to the security and mail a copy thereof by registered or certified mail to the lienor named in the claim of lien so transferred at the address stated therein. Within 10 days from the date of the receipt of the said certificate, the lienor may by motion, petition the court in which the action is pending for a hearing on the sufficiency of the amount in question or on the qualifications of the surety insurer. In such an event, the ruling of the court on the said motion, shall be a final determination. Upon the expiration of the said 10 days, or in the event a petition has been filed with the court, upon the determination of the court, and upon filing the certificate of transfer in the court where the lien was filed, the real property shall thereupon be released from the lien claimed and such lien shall be transferred to said security. The court shall be entitled to a fee for making and serving the certificate in the sum of $2.00. Any number of liens may be transferred to one such security.”

(Emphasis added.)

In the present case, the only document in the record indicating an attempt by Buco to substitute its promise to pay Mayer’s claim for the lien on the church’s property is the “Release of Lien Bond” that it executed. There is no indication in the record that the bond was filed with the court, as required by § 35-11-238, or that the court issued a “certificate showing the transfer of the lien from the real property.” As a result, the record does not indicate that Buco’s “Release of Lien Bond” was effective to lift Mayer’s lien on the church’s property, nor does it indicate that Buco’s promise to pay Mayer’s claim in lieu of the lien ever became effective.

We note further that, although Mayer had no contract with Buco and had not made any claim against Buco, the bond itself only obligated Buco to indemnify Mayer in the event of an unpaid monetary judgment in Mayer’s favor against Buco. Section 35-ll-233(b) requires that a bond thereunder “be conditioned to pay any judgment or decree which may be rendered for the satisfaction of the lien.” (Emphasis added.)

Given the foregoing, the record does not support Buco’s argument to this court that, because of the judgment in Mayer’s favor, Buco’s execution of the “Release of Lien Bond” requires Buco “to pay the amount of the lien.” We fail to see, therefore, how Buco was aggrieved by the trial court’s judgment in Mayer’s favor, which was directed at a lien on property owned by the church, not Buco. A party that is not aggrieved by a trial court’s judgment cannot appeal from that judgment. See Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 88 (Ala.1985); S.W.M. v. D.W.M., 723 So.2d 1271, 1272 (Ala.Civ.App.1998); and Rush v. Heflin, 411 So.2d 1295, 1297 (Ala. Civ.App.1982).

Because the record does not reflect that Buco was aggrieved by the trial court’s summary judgment in favor of Mayer, it was without standing to appeal that judgment. See Housing Auth. of Uniontown v. Mizell, 368 So.2d 37, 38-39 (Ala.Civ.App. 1979). Buco’s lack of standing deprives this court of jurisdiction over the appeal. See Ex parte Fort James Operating Co., 871 So.2d 51, 54 (Ala.2003). Consequently, the appeal must be dismissed.

Mayer’s motion seeking damages on the basis that this is a frivolous appeal is denied.

APPEAL DISMISSED.

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

      . We also note that Buco does not appear to qualify as a person with an “interest in the real property upon which the lien is imposed” or an interest in the contract between Mayer and J & J under which Mayer claimed the lien and that the bond fails to obligate Buco to pay the interest and costs required by § 35 — 11— 233(d).


text:
    Tammy Renee BROWN v. Jeffrey Mark BROWN.
    2050141.
    Court of Civil Appeals of Alabama.
    Dec. 29, 2006.

      Mari Morrison, Birmingham, for appellant.
    John E. Medaris, Pelham, for appellee.
   MURDOCK, Judge.

Tammy Renee Brown (“the mother”) appeals from a judgment reducing the amount of child support payable by Jeffrey Mark Brown (“the father”).

The parties were divorced in January 2001; they have three children who were 14, 8, and 6 years old at the time of the trial in this case. The divorce judgment awarded the parties joint legal custody of the children, awarded the mother primary custody of the children, and granted the father extensive visitation, including two nights each week. Pursuant to an agreement of the parties, the divorce judgment required the father to pay child support in the amount of $1,700 per month, together with the cost of the children’s education at Briarwood Christian School (“Briarwood”) so long as his income was more than $75,000 per year. The divorce judgment granted the father the primary responsibility for the children’s academic activities if the parties were unable to agree. The cost of the Briarwood fees for all three children was approximately $1,300 per month for the 2005-2006 school year.

In June 2003, the trial court entered a consent judgment that, among other things, modified the parties’ holiday and summer visitation schedule and required the father to provide medical insurance coverage on the children and to pay all noncovered medical expenses for the children.

In April 2005, the father filed this action, alleging that his income had declined to less than $75,000 per year, requesting that his child-support obligation be reduced, and requesting relief from his obligation to pay the children’s private-school expenses.

The mother filed a motion to maintain the status quo, requesting that the father continue to pay for the children’s private-school expenses until a trial on the merits. That motion was granted on May 5, 2005. The mother also filed a counterpetition requesting that she be awarded sole legal custody of the children and that the father’s visitation be reduced to standard visitation.

The case was tried ore tenus on August 15, 2005. The trial court heard testimony from the parties, the parties’ 14-year-old daughter, and Marcy Brown, the father’s new wife. On August 31, 2005, the trial court entered a judgment finding (1) that the father’s income had declined substantially through no fault of the father, (2) that the father’s “current income is $62,000 per year and is to the best of his ability,” and (3) that the father was obligated to pay the private-school expenses if his income exceeds $75,000. The judgment reduced the father’s child-support obligation from $1,700 per month to $1,025 per month.

The mother filed a motion under Rule 59, Ala. R. Civ. P., contending (1) that the trial court erred in its calculation of the father’s income and the father’s child-support obligation, (2) that evidence introduced at trial proved that the father had unilaterally and improperly deducted a total of approximately $1,284 from several of his child-support payments to pay for expenses allegedly incurred on behalf of the children, and (3) that the trial court erred in not awarding the mother sole legal custody of the children and in not reducing the father’s visitation. On November 2, 2005, the trial court entered an amended judgment requiring the oldest child to remain in school at Briarwood at the mother’s expense until her graduation, requiring the two younger children to remain at Briarwood until the end of the 2005-2006 school year at the mother’s expense, and requiring the parties to attend counseling to develop better communication skills.

The mother appeals, contending (1) that the trial court erred in finding that the father’s income had decreased to less than $75,000 per year, (2) that the trial court erred in its calculation of child support because it incorrectly determined the father’s income, (3) that the trial court erred in not finding the father in contempt for making the unilateral deductions from his child-support payments, and (4) that the trial court abused its discretion in failing to award the mother sole legal custody of the children and in not reducing the father’s mid-week visitation.

At the time of the divorce, the father was employed as a foreman with Acton Construction Company (“Acton”), which builds houses in Shelby County. The father earned approximately $120,000 in 2001. In 2001, the mother was unemployed and had little or no income.

In 2003, the father reactivated a business that he owned, Distinctive Builders, Incorporated (“Distinctive”), and began preparing to leave his employment with Acton. The father testified that the owners of Acton were planning to retire and to bring their sons-in-law into the business. According to the father, the owners of Acton encouraged him to leave Acton.

In 2003 or early 2004, the father began working part-time for Distinctive building new houses while continuing to work for Acton. In August 2004, the father left Acton and began working full-time for Distinctive. During 2004, Distinctive sold seven new houses, at prices ranging from $319,900 to $433,652. In 2005, Distinctive sold six houses through the date of the August 2005 trial. The father testified that Distinctive had several houses under construction at the time of the trial but that only one of those houses would be completed in time to be sold in 2005.

The parties dispute the amount of the father’s income for 2004 and 2005. It is not disputed that the father earned approximately $54,000 from Acton before his resignation in August 2004. The parties dispute the amount of the father’s income from Distinctive. The father testified that Distinctive made little or no profit on most of the houses that it built and sold. The mother argues that Distinctive made profits in excess of $40,000 on each of the seven houses that it sold in 2004. The record contains a 2004 federal corporate income-tax return for Distinctive that shows a net income of $139,769 and an amended 2004 federal corporate income-tax return for Distinctive that shows a net income of $33,844. The father is the sole shareholder of Distinctive, and all of Distinctive’s net income is allocated to him.

There is little evidence of the father’s income for 2005. The father’s form CS-41 (“Child Support Obligation Income Statement Affidavit”) reflects a monthly income of “$3,375 or less.” That amount is consistent with the father’s testimony that for the first eight months of 2005 he received a total draw or salary of $27,000 from Distinctive, which was paid as funds were available. The record does not include Distinctive’s financial statements for any part of 2005.

The trial court’s factual determination concerning the father’s income is presumed to be correct and “will not be disturbed on appeal, absent a showing that the ruling is unsupported by the evidence and thus is plainly and palpably wrong.” Jackson v. Jackson, 777 So.2d 155, 158 (Ala.Civ.App.2000).

Rule 32(B), Ala. R. Jud. Admin., which governs the computation of child support, provides in part:

“(2) Gross Income.
“(a) ‘Gross income’ includes 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 mother contends that the trial court erred in finding that the father’s income was less than $75,000 a year, thus allowing the father to cease paying the costs of the children’s private-school education. She also contends that the trial court erred when it found the father’s income for purposes of computing child support to be only $62,000 per year.

“(3) Self-Employment Income.
“(a) For income from self-employment, rent, royalties, proprietorship of business, or joint ownership of a partnership or closely held corporation, ‘gross income’ means gross receipts minus ordinary and necessary expenses required to produce such income, as allowed by the Internal Revenue Service, with the exceptions noted in section (B)(3)(b).
“(b) ‘Ordinary and necessary expenses’ does not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.”

This court has held that in cases involving a parent who owns an interest in a closely held corporation, the parent’s income for purposes of determining child support is “the business’s net income, some of which is reinvested in the business, rather than the ‘owner’s draw.’ ” Puckett v. Summerford, 706 So.2d 1257, 1258 (Ala.Civ.App.1997). See also Hall v. Hubbard, 697 So.2d 486, 488 (Ala.Civ.App. 1997).

In this case, the father’s 2004 income included the father’s $54,000 salary from Acton and Distinctive’s net income of $33,844, which totals $87,844. As to the father’s 2005 income, the trial court found the father’s current income to be $62,000 per year, but we cannot determine the basis for that finding. According to the father, he received an average salary or draw of $3,375 per month from Distinctive from January 2005 through August 2005, ie., $40,500 per year. However, the relevant income is Distinctive’s net income, not the father’s draw or salary. The record does not include any financial statements for Distinctive or any basis for determining Distinctive’s annual net income to be $62,000.

In an October 2004 loan application, the father estimated his annual income to be $90,000. The evidence in the record shows that the father’s lifestyle and net worth have not materially decreased since 2003, when he was earning approximately $120,000. The father’s financial statements show a net worth in excess of $900,000, the mortgage payment on the father’s present home is approximately $3;800 per month, and there is evidence in the record indicating that the father has spent a substantial amount on luxury automobiles and travel.

The father had the burden of establishing his income for purposes of determining child support, Reeves v. Reeves, 894 So.2d 712, 714 (Ala.Civ.App.2004). We do not find substantial, if any, evidence to support the trial court’s finding that the father’s income was $62,000 per year. Thus, we must reverse the trial court’s judgment as to this issue and remand the cause for the trial court to make such findings as are supported by the evidence and to enter a judgment computing a child-support award in accordance with Rule 32, Ala. R. Jud. Admin., and the parties’ separation agreement that was incorporated into the divorce judgment, including, if appropriate, payment for the children’s private-school expenses.

The mother also contends that the trial court erred in denying, without explanation, the mother’s claims that the father was in contempt of court for failing to pay the full amount of child support on two occasions. A determination regarding contempt of court is committed to the sound discretion of the trial court, and we will affirm unless the trial court abused its discretion or “unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong....” Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994).' The father testified at trial that he deducted from his child-support payments certain expenses, primarily clothing, that he paid on behalf of the children. See State ex rel. Burt v. Morgan, 716 So.2d 729, 732 (Ala.Civ.App. 1998). We have reviewed the record, and we cannot conclude that the trial court abused its discretion in refusing to find the father in contempt with regard to child support.

Finally, the mother contends that the trial court erred in not awarding her sole legal custody of the children and in not reducing the father’s visitation. We note the presumption of correctness accorded to the trial court’s judgment:

“When this Court reviews a trial court’s child-custody determination that was based upon evidence presented ore ten-us, we presume the trial court’s decision is correct: ‘ “A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....’” Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ. App.1981).”

Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001).

We have reviewed the record, and we cannot conclude that the trial court abused its discretion in refusing to modify the existing custody and visitation provisions.

Based on the foregoing, we affirm the judgment as to the mother’s contempt petition regarding child support and the mother’s counterpetition concerning a change of custody and visitation. We reverse the judgment and remand the cause for the trial court to recalculate the father’s child-support obligation and to reconsider the father’s obligation to pay the children’s private-school expenses in light of its recalculation of the father’s income.

The appellant’s request for the award of an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The father’s annual income was slightly more than $10,000 per month, or $120,000 per year, the maximum amount of income to which the Child Support Guidelines of Rule 32, Ala. R. Jud. Admin., are applicable.

      . The judgment did not explicitly declare that the father was no longer required to pay the children's private-school expenses, but this conclusion follows logically from the factual finding.

      . The mother's argument is based on her erroneously equating net sale proceeds (gross proceeds less closing expenses and mortgage payoffs) with net profit.

      . In his brief to this court, the father does not state the amount of his income for 2004 or 2005, nor does he discuss the appropriate method of computing his income.