source: Caselaw Access Project

author: THOMAS, Judge. THOMAS, Judge.

license: Public Domain

text:
    F.I. v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2051079.
    Court of Civil Appeals of Alabama.
    April 6, 2007.
    Opinion on Return to Remand May 25, 2007.

      Christmas Y. Green, Selma, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellee.
   THOMAS, Judge.

This is a termination-of-parental-rights case. F.I. (“the father”) is the father of M.P. (“the child”), a 10-year-old girl who has been in the legal custody of the Department of Human Resources (“DHR”) since her birth in March 1997. The father’s paternity of the child was not established until 2004, after a petition for the termination of his parental rights and those of L.B. (“the mother”) had been filed in July 2004. The father was served by publication, although he had been located by the child-support division of DHR in relation to the paternity testing of two of the mother’s other children.

The mother is mildly mentally retarded. DHR worked very hard to reunite the mother with her children, but to no avail. The mother simply could not maintain any progress she had made in meeting the basic needs of the children without constant, daily aid by DHR workers. The mother and the father married in 2002. The father left the mother at some unidentified point, however, citing as a reason his inability to “help” the mother and the drug dealing that occurred at the home. According to Corrine Burt, the DHR caseworker assigned to the case, the mother indicated shortly after the marriage that she and the father had separated because she had not known he had a criminal record.

The father testified about his criminal record at the termination trial in 2006. Although at one point he said that he had served one year of jail time for assault, he later said that he was not convicted of assaulting a police officer. The father’s testimony is disjointed, and it is unclear whether he was charged with two separate assaults and that one concerning an assault on a police officer was dismissed or whether he was convicted of only one assault, that being an assault on a police officer, and that he served one year for that conviction. The father also related having been convicted of possession of a forged instrument. The father admitted that he had been convicted of escape in the second degree, a class C felony, on three occasions: once in 1997, once in 1998, and once in 2001. He said that he had been on probation since 1998 and that he would be off of probation in March 2007.

The father admitted that he had failed to contact DHR regarding the child and that he had paid no support to DHR or to the child’s foster parent. He said that he had paid money to the mother at times and possibly directly to the child at times; however, as noted above, the mother has not had custody of the child except on a trial basis since 1997. In addition, the father testified about his sporadic contact with the child. He said that he had seen the child at times when the child had visitation with the mother. He also said that he had seen the child on occasion at the home of the foster mother; however, he noted that those visits were conducted at his vehicle because, he said, the foster mother did not want him to come inside her home. The father also said that the mother had told him that Burt, the DHR caseworker, did not want him around the children. The father had last seen the child in October 2005.

At the time of the termination trial in June 2006, the father was a self-employed mechanic and welder. He had worked in the 1990s at a broom-making facility called “Crystal Lake” and at a place called “Simmons.” He testified at trial that he was expecting to start work the following week at a place he called “Zone 41.” The father lives with his mother, but the tape from which the record was transcribed was not clear and the transcript indicates that the location of their residence was “unintelligible.”

Burt testified that she had never seen the father in the home with the mother despite their being married. In fact, Burt said that she had had little, if any, contact with the father during the years the child had been in DHR’s custody. She admitted that she had never asked the mother to have the father present at any visitations. She said that the father had never contacted DHR concerning the child and that he had never indicated any interest in acting as a father to the child. Burt testified that DHR knew that the father had a criminal record and that he had “been in and out of jail”; however, Burt was not aware of what the father had been convicted of or why he had been in and out of jail. Although Burt said that she did not think that a criminal record alone is always a sufficient reason to terminate parental rights, it was evident from her testimony that the father’s criminal history and his lack of involvement and interest in the child led to DHR’s decision not to attempt to rehabilitate the father as a custodian for the child.

The father testified regarding his failure to ever contact DHR about seeking custody of the child or otherwise exercising any aspect of his parental rights or responsibilities. He basically admitted that he had not taken any action to protect the child or her siblings when he left them with the mother, even when he thought the environment was dangerous for them. He also admitted that he had not contacted DHR about seeking custody of the child or to offer his mother or sister as alternative placements for the child because he thought the child would be returned to the mother eventually. When pressured further about why he had failed to act as a responsible parent would, the father replied, “she [apparently the mother] was going to tell me Burt doesn’t want you to have anything to do with the kids.” The father said that had DHR contacted him about visitation he would have responded. He said that if he were given the opportunity by DHR he would like to develop a relationship with his child and would take parenting classes and offer financial and emotional support to the child. He said that he was now seeking custody of the child.

The juvenile court entered a judgment terminating the parental rights of both the mother and the father. In that judgment, the court specifically found that “the natural parents are unable and unwilling to discharge their responsibilities to and for said child and it is unlikely that such conditions will materially change in the foreseeable future” and that “[DHR] has made reasonable efforts toward rehabilitation'and such efforts have failed, primarily due to the fault of the parents.” The father appeals the judgment terminating his parental rights, arguing that DHR did not present sufficient evidence, i.e., clear and convincing evidence, that he was unable and unwilling to discharge his responsibilities as a parent.

“The right to maintain family integrity is a fundamental right protected by the due process requirements of the Constitution. Pursuant to this right, Alabama courts recognize a presumption that parental custody will be in the best interests of a child. This prima facie right of a parent to custody of his or her child can only be overcome by clear and convincing evidence that permanent removal from the parent’s custody would be in the child’s best interest, but the primary consideration in any proceeding to terminate parental rights is always the best interests and welfare of the child. In making that determination, the court must consider whether the parent is physically, financially, and mentally able to care for the child. If the court finds from clear and convincing evidence that the parent is unable or unwilling to discharge his or her responsibilities to and for the child, his or her parental rights can then be terminated, pursuant to § 26-18-7(a), Ala.Code 1975....”

Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988) (citations omitted). The juvenile court’s factual findings based on evidence presented ore tenus in a judgment terminating parental rights are presumed correct. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995). The judgment terminating parental rights based on those findings will be reversed only if the record demonstrates that the decision is unsupported by the appropriate quantum of evidence, i.e., clear and convincing evidence, and is plainly and palpably wrong. Ex parte T.V., 971 So.2d 1, 4-5 (Ala.2007).

To terminate parental rights on a petition by the state, the juvenile court must first determine from clear and convincing evidence that the child or children are dependent. S.F. v. Department of Human Res., 680 So.2d 346 (Ala.Civ.App.1996). The court must then determine that there exists no alternative to termination. L.A.G. v. State Dep’t of Human Res., 681 So.2d 596 (Ala.Civ.App.1996).

A court may terminate parental rights when “the parents of [the] child are unable or unwilling to discharge their responsibilities to and for the child ... and ... such conduct or condition is unlikely to change in the foreseeable future.” Ala.Code 1975, § 26-18-7(a). Sections 26—18—7(a)(1)—(6) and (b)(1)-(4) list factors a trial court must consider in making the difficult decision whether to terminate parental rights. Among those factors to be considered are whether a parent has abandoned the child, § 26-18-7(a)(1), and whether a parent has been convicted of and imprisoned for a felony. § 26-18-7(a)(4). In addition, when the child is not in the custody of a parent, the court shall also consider the failure of a parent to pay support for the child when the parent is able to do so, § 26-18-7(b)(1), the failure of a parent to maintain consistent contact and communication with the child, § 26—18—7(b)(3), and that the parent has failed to maintain regular visits with the child in violation of a plan devised by DHR. § 26-18-7(b)(2).

DHR argues that the inaction by the father in this case amounts to abandonment such that reasonable efforts to reunite the child with the father were not required. See § 26-18-7(a)(l) (providing that, if the parents have abandoned the child, “proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents”). Abandonment is defined as “[a] voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his presence, care, love, protection, maintenance or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.” Ala.Code 1975, § 26-18-3(1). As DHR argues, some of the facts established at trial could support a determination that the father had abandoned the child. However, the juvenile court found that DHR had made reasonable efforts to rehabilitate the father and that those efforts had failed. As the father argues, the juvenile court’s finding that DHR had made reasonable efforts is unsupported by the record, which reveals that DHR had little if any contact with the father.

We typically assume that a juvenile court makes those findings necessary to support its judgment. A.A. v. Cleburne County Dep’t of Human Res., 912 So.2d 261, 264 (Ala.Civ.App.2005). In the present case, however, we are faced with a judgment in which a finding contrary to the one we might assume in support of the judgment was, in fact, made. We have faced this situation before. See S.A.B. v. Mobile County Dep’t of Human Res., 845 So.2d 825 (Ala.Civ.App.2002).

“In the present case, the evidence might support a finding that S.A.B. had abandoned his child. S.A.B. neither supported nor requested visitation with D.B. during the six-month period between September 8, 2000, and March 7, 2001. However, the trial court apparently did not rely on the abandonment exception to the reasonable-efforts requirement because its judgment recites satisfaction of the reasonable-efforts requirement. DHR contends that we must affirm the juvenile court’s judgment because (1) according to Ex parte State Department of Human Resources, 624 So.2d 589, 593 (Ala.1993), a juvenile court is not required to make specific written findings in a termination-of-parental-rights case, (2) this court must presume that the juvenile court made those findings necessary to uphold its judgment, and (3) the evidence would support a finding of abandonment.
“In the absence of the recitation in the juvenile court’s judgment that the reasonable-efforts requirement had been satisfied in this case, we could affirm the judgment. However, because the court specifically determined that DHR had ‘exercised all reasonable efforts to prevent removal, to promote reunification, and to prevent and avoid termination of parental rights’ we are left in doubt as to the import of the juvenile court’s order. As it now reads, the order could be construed in either of two ways: (1) that S.A.B. had not abandoned the child but that DHR had made the required effort to rehabilitate him, or (2) that the trial court had simply overlooked the abandonment exception to the reasonable-efforts requirement. We, therefore, remand this cause to the juvenile court with instructions to make a specific finding as to whether S.A.B. abandoned the child. If the court determines that an abandonment occurred, it need not determine whether DHR engaged in any rehabilitative efforts. See §§ 26-18-7(a)(1) and 26-18-7(c). If, on the other hand, the court determines that S.A.B. did not abandon the child, then the court must make a further determination regarding DHR’s efforts to rehabilitate SAB.”

S.A.B., 845 So.2d at 828-29.

In accordance with S.A.B., we remand this cause to the juvenile court for it to determine whether the father has abandoned the child. If it concludes that the father did abandon the child, the juvenile court need not consider whether DHR made any efforts toward rehabilitating the father or reuniting the father and the child. However, if the juvenile court is not convinced that the father abandoned the child, it must make a further determination regarding DHR’s efforts to rehabilitate the father or to reunite the father and the child. The juvenile court is ordered to make a return to this court within 28 days of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

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

On Return to Remand

THOMAS, Judge.

This is a termination-of-parental-rights case. On April 6, 2007, we remanded this action to the Dallas Juvenile Court and instructed that court to determine whether F.I. (“the father”) had abandoned M.P. (“the child”). See F.I. v. State Dep’t of Human Res., 975 So.2d 969 (Ala.Civ.App.2007). The trial court, in compliance with our instructions, has filed its return with this court. It has determined that the father did abandon the child and, thus, that the Department of Human Resources (“DHR”) was not required to make any efforts toward rehabilitating the father or reuniting the father and the child.

The father has shown a grave lack of concern for the child. Although the father had married and lived with the mother, he did not seek to establish paternity of the child (or of the mother’s other children, who she asserted he had also fathered) until DHR sought to collect child support from him. Despite his concern and discomfort about the mother’s living conditions — conditions that he said had motivated him to move out of their home — he did nothing to seek custody of the child, instead opting to wait for the mother to succeed in having the child returned to her care. Despite his knowledge of the DHR caseworker’s name and DHR’s long-term involvement with this case, he never sought to establish visitation or to pay-support for the child. It also appears that the father did not apprise DHR of his whereabouts so that he could be contacted by the caseworker. Thus, we conclude that the trial court correctly determined that the father’s inaction amounted to an abandonment of the child, which would permit the trial court to terminate his parental rights even though DHR did not attempt to rehabilitate the father or to reunite the father with the child. See Ala.Code 1975, § 26-18-7(a)(1) (permitting the termination of parental rights when “the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents”).

AFFIRMED.

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

      . Because the child has never lived full-time with the mother, we assume that the father left the child and. her siblings with the mother during an extended visitation or during a trial reunification with the mother.


author: THOMPSON, Presiding Judge.

text:
    C.M.M. v. S.F.
    2051028.
    Court of Civil Appeals of Alabama.
    June 1, 2007.

      Jan Schroeder Grant and Catherine R. Steinwinder of Law Offices of Judy H. Barganier, P.C., Montgomery, for appellant.
    Louis C. Colley of Cleveland & Colley, P.C., Prattville, for appellee.
   THOMPSON, Presiding Judge.

On March 15, 2004, C.M.M. (“the father”) filed a complaint alleging that J.H.M. (“the child”) was a dependent child as that term is defined under § 12-15-1(10), Ala.Code 1975. In his dependency complaint, the father alleged that the child’s maternal grandmother, J.F. (“the grandmother”), had legal custody of the child and that the child’s mother, S.F. (“the mother”), had filed a complaint seeking custody of the child. The father alleged that neither the mother nor the grandmother was capable of parenting the child and that it was in the child’s best interest that custody be awarded to him. The father sought custody of the child and an award of child support from the mother. The record indicates that the grandmother did not oppose an award of custody to the mother, and the record does not indicate that she filed any document in the trial court opposing the father’s dependency complaint. The record also does not indicate whether the mother submitted an opposition to the father’s dependency complaint.

The trial court conducted a hearing at which it received ore tenus evidence. On August 10, 2006, the trial court entered an order awarding custody of the child to the mother and fashioning a visitation schedule for the father. In that order, the trial court ordered the parties to submit information regarding their incomes for the purpose of determining the father’s child-support obligation. Accordingly, the August 10, 2006, order did not constitute a final judgment because it did not determine all the issues in controversy between the parties. See Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004) (“A final judgment is one that disposes of all the claims and controversies between the parties.”). The father filed a motion, purportedly pursuant to Rule 59(e), Ala. R. Civ. P., which the trial court denied. The father then filed another motion seeking reconsideration of the denial of the original “postjudgment” motion; the trial court denied that motion as well.

On September 8, 2006, the father appealed to this court. While the father’s appeal was pending, this court entered an order temporarily reinvesting the trial court with jurisdiction to enter a final judgment in this matter. On December 28, 2006, the trial court entered a final judgment that incorporated the language from its August 10, 2006, order regarding its custody and visitation awards and also ordered the father to pay $733 per month in child support. The parties subsequently submitted briefs to this court with regard to the December 28, 2006, final judgment.

At the time of the July 26, 2006, ore tenus hearing, the child was 12 years old. The mother also has another child who is in the custody of that child’s father; custody of that child is not at issue in this appeal. The grandmother has had custody of the child since he was approximately 16 months old; the record on appeal does not contain the order granting the grandmother custody. At the time the mother transferred custody of the child to the grandmother, the mother’s lifestyle was unstable, and she was drinking alcohol and abusing illegal drugs. According to the testimony of the mother and the grandmother, the mother was always involved in the child’s life and often lived in the grandmother’s home with the child.

Approximately five or six years before the hearing, the mother stopped using illegal drugs and began to stabilize her life. The mother became very active in the child’s life, and she resumed living with the child and the grandmother. In July 2003, the mother moved from the grandmother’s home. According to the grandmother, the child begged to be allowed to live with the mother, and the grandmother allowed him to do so. The grandmother stated that at that time, as well as at the time of the hearing, she had no concerns about the mother’s ability to properly parent the child. The record indicates that the mother and the grandmother consulted an attorney to formalize the custody arrangement they were proposing but that there was a delay of several months in the actual filing of the mother’s complaint for custody of the child. After the mother filed her complaint for custody, the father filed his dependency complaint.

The mother has worked for a local automobile dealership for approximately three years. A condition of employment at that dealership is submitting to random drug-screen tests, and the mother has never failed a drug-screen test. The mother’s supervisor testified that the mother’s employer was supportive of working mothers and was flexible in allowing the mother and other female employees to take care of the needs of their families. Before these proceedings were initiated, the child often stayed at the father’s home after school until the mother picked him up after work; however, after the father filed his dependency complaint, the child began staying after school with the mother at her place of employment. In the months before the hearing, the child, who was then 12 years old, began staying alone at the mother’s home after school and waiting for the mother to return from work. Neighbors with whom the mother and the child share a close relationship watched out for the child until the mother returned from work. Those same neighbors were keeping an eye on the child during the summer months while the child either stayed at the mother’s home or visited the neighbors.

The father presented evidence indicating that, while the child was living with the mother, the child was frequently late for or absent from school. The mother testified that she often had difficulty awaking the child for school. The mother admitted that the child’s frequent lateness to school was wrong, and she stated that she was improving in her efforts to have the child at school on time. The father also alleged that the mother smokes cigarettes around the child and that the child has respiratory problems as a result. The mother did not present any evidence regarding her smoking.

The mother testified that the child had always done well in school until the year before the hearing while this modification proceeding was pending. The mother testified that the child had not had a grade lower than a “C” on his report card. The father believed the child had recently made grades lower than a “C” on his report card for some classes. We note that the father, in his purported postjudgment motions, alleged that the child had received a “D” grade on his report card in some classes, and he submitted some documentation in support of that claim. However, it is not clear that the trial court accepted those documents as evidence or considered them in denying those motions. See J.S.M. v. P.J., 902 So.2d 89, 91 n. 2 (Ala.Civ.App.2004) (this court refused to consider an affidavit submitted in support of a valid postjudgment motion when it was unclear that the trial court had considered that evidence).

The father accused the mother of being involved with or living with a number of different men in the last few years. The mother admitted to dating or having relationships with some men, but not as many as the father alleged. The parties disputed some facts regarding the mother’s relationship with her most recent boyfriend, to whom she was briefly engaged. The father testified that the child hated that boyfriend and that the mother often took the child on overnight trips to Alabaster, the town in which that man lived. The mother testified that she and the child had traveled to visit the boyfriend in Alabaster on only two occasions. The mother stated that she had ended her relationship with the man because she decided that it was in the child’s best interests for her to do so.

The father’s paternity was established when the child was approximately two years old. At that time, the father was awarded visitation with the child, and he was ordered to pay child support. The father had previously unsuccessfully petitioned the court to obtain an award of custody of the child. The record does not clearly indicate when the father initiated that earlier action, but it appears that it was initiated more than five years before the hearing in this matter; in other words, it was initiated before the mother began making significant improvements to her life.

The father testified that the mother and the grandmother had interfered with his visitation with the child, and the mother and the grandmother denied that allegation. The father also testified that the mother’s and the grandmother’s interference with his visitation with the child caused him to stop visiting and paying support for the child for a period of 8 to 12 months. On cross-examination, the father’s testimony regarding that allegation was impeached by his prior deposition testimony, but the father insisted that his memory of the events was better at the time of the hearing than it was at the time of the deposition that had been conducted two years earlier. The father admitted that he does not attempt to contact the child by telephone between his alternate-weekend visitations.

When the child began living with the mother, the father began making his child-support payments to the mother rather than to the grandmother. At the hearing, the father testified that he was current on his child-support obligation.

The father admitted that he has been convicted on a charge of driving under the influence and that he was arrested on a second charge for that offense. The father has also been arrested on domestic-violence charges.

The father is currently married to his third wife (“the wife”). The father has custody of a child from his first marriage, and the wife has custody of three children from a previous marriage. The father and the wife testified that the child has a good relationship with the other children in their household and that he enjoys family activities when he visits. The father is employed and his wife works in the home rearing their children. In recent years, the father has become more involved in the child’s life, especially in attending sporting events in which the child participates. The father and his wife often assist the child with homework and school projects.

The mother and the grandmother expressed concern that the father often criticized or belittled the child; they stated that the father had called the child names such as “sissy.” The father denied calling the child names. However, the father believed the child was “almost a hypochondriac.” The father acknowledged that he wanted the child to be tougher and that he was concerned that other children would pick on or bully the child. The father also believed that the child’s receiving medication “for every little old sniffle” could later lead to an addiction to illegal substances; the father explained that he was “sure that that is how dependency is started, just by regular drugs, abusing regular drugs. Then you move on to other drugs.”

When asked why he believed that he should be awarded custody of the child, the father indicated that he did not approve of the mother’s relationship with the child. The father alleged that the mother acted more like a friend to the child than a parent. The father also stated that his home offered the child stability and routine, as well as a family.

The parties made a number of other allegations with regard to each other’s parenting abilities and habits; no useful purpose would be served by setting forth all of those allegations in detail. In addition, both parties presented the testimony of several character witnesses, all of whom testified that the parent for whom they were testifying had a good relationship with the child and seemed to be a fit parent. During the hearing, the trial court, without objection from either party, conducted an in camera interview with the child; that interview was not transcribed for the record on appeal.

On appeal, the father first challenges the trial court’s custody award. In this case, prior court orders have awarded custody of the child to the grandmother rather than to either of the parents. When a parent has voluntarily relinquished custody of a child, or when a court order removes custody from a parent to a nonparent, the parent must meet the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), in order to regain custody of the child. Ex parte Terry, 494 So.2d 628, 631 (Ala.1986). The McLendon standard requires that the party seeking to modify custody demonstrate that “ ‘material changes affecting the child’s welfare since the most recent [custody judgment] demonstrate that custody should be [altered] to promote the child’s best interests[ and that t]he positive good brought about by the modification ... more than offset[s] the inherently disruptive effect caused by uprooting the child.’ ” Ex parte McLendon, 455 So.2d at 865 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)).

The father contends on appeal that the mother failed to meet the standard set forth in Ex parte McLendon, supra, but that he did meet that standard. Accordingly, the father contends that the trial court erred in awarding custody to the mother rather than to him. We note that in reaching its custody determination in its December 28, 2006, judgment, the trial court did not make any findings of fact.

“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). In regard to custody determinations, this Court has also stated: ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).”

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

Since the time of the most recent custody judgment, which appears to have been entered on the father’s earlier unsuccessful action seeking custody, the mother has stabilized her life and stopped using illegal drugs. The mother and the grandmother testified at length regarding the mother’s involvement in the child’s life in the last five to six years. The mother is employed and maintains her own home. The grandmother fully supported the mother’s complaint for custody.

The father also maintains employment and a stable home with his new family. He is involved in the child’s activities and assists the child with school projects. The father alleges that he should be granted custody of the child because, he argues, the mother is more like a friend to the child than a parent. He also criticizes the mother’s relationships with men; however, at the time of the hearing, the mother had terminated a relationship because she believed it was in the child’s best interests to do so.

The record establishes that there have been material changes in circumstances that necessitate a custody modification. The grandmother, who previously had custody pursuant to a court order, has not opposed the parties’ claims seeking custody of the child. The record clearly demonstrates that each parent loves the child and that each has a good relationship with the child. The mother has demonstrated some lapses in judgment, perhaps in her romantic relationships and definitely with regard to the child’s frequent lateness to school. However, it is clear that the mother has substantially altered her life in the five years before the hearing in this matter. The evidence supports a conclusion that the mother is now capable of properly parenting the child.

The record does not indicate the nature of the father’s circumstances at the time of the earlier custody proceedings in which the father unsuccessfully petitioned for custody of the child. Therefore, it is not clear to this court the extent of any changes in the father’s circumstances since the most recent custody judgment, which denied his earlier petition for custody. See Ex parte McLendon, 455 So.2d at 865 (“ ‘[T]he party seeking modification [must] prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent [judgment] demonstrate that custody should be disturbed to promote the child’s best interests.’ ” (emphasis added)). It is the responsibility of the father, as the appellant, to ensure that the record on appeal contains sufficient evidence on that issue to warrant a reversal of the trial court’s judgment. Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000).

After carefully considering the evidence in the record, we conclude that the record supports the conclusion that the mother has met the McLendon standard. Accordingly, we reject the father’s argument that the trial court’s implicit determination that the mother had met that standard was not supported by the evidence. Further, even assuming that we agree with the father that he also presented sufficient evidence to meet the McLendon standard, the trial court still had to determine custody as between the mother and the father. This court must afford a presumption of correctness to the trial court’s factual determinations that resulted in its custody determination. Ex parte Fann, supra. Further, we must assume that the evidence the trial court received during its in camera interview with the child also supports its custody determination. See Hughes v. Hughes, 685 So.2d 755, 757 (Ala.Civ.App.1996); Reuter v. Neese, 586 So.2d 232, 235 (Ala.Civ.App.1991). Accordingly, we cannot say that the father has demonstrated that the trial court erred in reaching its custody determination.

The father also argues on appeal that the trial court erred in failing to conduct a hearing on what he characterizes as his Rule 59(e), Ala. R. Civ. P., “post-judgment motion.” Rule 59(g), Ala. R. Civ. P., requires that motions filed pursuant to Rule 59 “shall not be ruled upon until the parties have had opportunity to be heard thereon.” We note that

“[o]ur Supreme Court has established that
“ ‘the denial of a postjudgment motion without a hearing thereon is harmless error, where (1) there is either no probable merit in the grounds asserted in the motion, or (2) the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’ ”

Bell v. Greer, 853 So.2d 1015, 1019 (Ala.Civ.App.2003) (quoting Historic Blakely Auth. v. Williams, 675 So.2d 350, 352 (Ala.1995)).

As already indicated earlier in this opinion, the father filed two motions, purportedly pursuant to Rule 59(e), after the entry of the August 10, 2006, order. However, both of those motions were filed before the entry of the December 28, 2006, final judgment in this matter. A valid Rule 59 motion may only be filed in regard to a final judgment. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549 (Ala.2003) (“By its express terms, Rule 59(e) applies only where there is a ‘judgment.’ ”); Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999) (“[A] Rule 59 motion may be made only in reference to a final judgment or order.”). The father’s two purported postjudgment motions, because they were filed in reference to a nonfinal judgment, were not true Rule 59(e) motions. Accordingly, we conclude that there is no merit to the father’s argument that the trial court was required, pursuant to Rule 59(g), to conduct a hearing on those motions.

As a final issue on appeal, the father challenges the trial court’s child-support award of $733 per month. Specifically, the father argues that the record does not indicate that the trial court utilized the child-support forms required by Rule 32(E), Ala. R. Jud. Admin., which governs the establishment of a child-support award, in reaching its child-support determination. Rule 32(E) requires that the parties and the trial court submit the standardized child-support forms set forth in Rule 32. Martin v. Martin, 637 So.2d 901 (Ala.Civ.App.1994).

In this case, the father submitted one of the required child-support forms, and the mother failed to submit those forms to the trial court. In reaching its judgment, the trial court failed to include a CS-42 form indicating the manner in which it calculated child support.

Both parties did submit some evidence to the trial court regarding their incomes and the cost of providing health insurance for the child. Using the evidence submitted by the parties, this court attempted to determine or reconstruct the manner in which the trial court reached its child-support award. This court’s calculations resulted in child-support awards close to the amount awarded by the trial court. However, this court was unable to determine precisely the manner in which the trial court calculated its child-support award. Accordingly, we must reverse the judgment as to child support and remand the cause for the trial court to conduct further proceedings in compliance with Rule 32(E), Ala. R. Jud. Admin.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

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

      . We note that the mother’s complaint seeking custody is not included in the record on appeal.

      . The parties have not presented to this court an argument pertaining to the standard to be applied to a custody determination between the two of them in the event the court determined that each of them had met the McLen-don standard as against the grandmother. In the absence of arguments by the parties interested in the resolution of that issue, this court declines to reach the issue.


author: THOMAS, Judge.

text:
    C.P. v. FAIRFIELD BOARD OF EDUCATION.
    2060251.
    Court of Civil Appeals of Alabama.
    June 8, 2007.

      Minnie L. Tunstall, Bessemer, for appellant.
    Donald B. Sweeney, Jr., of Bradley Ar-ant Rose & White, LLP, Birmingham, for appellee.
   THOMAS, Judge.

C.P. sued the Fairfield Board of Education in the juvenile court, alleging that his daughter, Cr.P., who had been suspended from school for three days, had been denied substantive due process. C.P. sought to have the suspension reversed and expunged from Cr.P.’s record.

The Board answered, moved to dismiss, and requested attorneys’ fees and costs, pursuant to the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala. Code 1975. The Board’s motion to dismiss was set for a hearing on December 1, 2006. On that date, C.P. appeared and requested a continuance, stating that he had dismissed his attorney the day before the hearing and needed to “get an attorney to represent [him].” L.B. Powell, the person purporting to act as the juvenile court judge, denied C.P.’s motion for a continuance, heard the Board’s argument on the merits of its motion to dismiss, granted the Board’s motion, and awarded the Board an attorney fee of $1,200.

On December 14, 2006, C.P. filled out a form entitled “Request for Rehearing (Appeal from Referee to Judge).” The form appears in the record as an unfiled document. On the same date, C.P. filed a notice of appeal to this court. The record does not indicate that C.P.’s “Request for Rehearing” was ever acted upon. On appeal to this court, C.P. argues, among other things, that his “Request for Rehearing (Appeal from Referee to Judge)” should have been granted.

C.P. contends that L.B. Powell, the person who denied his motion for a continuance, granted the Board’s motion to dismiss, and awarded the Board an attorney fee, is a referee — a licensed attorney appointed pursuant to § 12-15-6(a), Ala. Code 1975 — but is not a judge as required by Rule 13(A), Ala. R. Jud. Admin. That rule states:

“The presiding circuit judge may temporarily assign circuit or district court judges to serve either within the circuit or in district courts within the circuit.”

The record contains a December 1, 2006, “Order” signed by L.B. Powell over a signature line designated as follows: “Signature of Judge/Referee.” Notwithstanding Powell’s designation of himself as a “judge,” the official records maintained by the Administrative Office of Courts indicate that L.B. Powell is an attorney who is ■paid as a full-time referee; he is not a judge.

Section 12-15-6, Ala.Code 1975, deals with referees. Subsection (a) provides for the appointment of referees in juvenile proceedings. That section states:

“(a) The judge may appoint one or more persons to serve as referees on a full-time or part-time basis subject to approval of the administrative director of courts. Referees shall be licensed to practice law in this state; provided, that referees serving as such for 10 or more years on January 16, 1977, will not be required to be members of the bar of this state.”

Subsection (b) sets out the circumstances in which a referee may conduct hearings:

“(b) The judge may direct that hearings in any case or class of cases be conducted in the first instance by a referee unless:
“(1) The hearing is one to determine whether a case shall be transferred for criminal prosecution; or
“(2) A party objects to the hearing being held by a referee.”

Subsections (c) through (e) set out the procedure for “finalizing” the findings and recommendations of a referee:

“(c) Upon the conclusion of a hearing-before a referee, [the referee] shall transmit his findings and recommendations for disposition to the judge. Written notice of the findings and recommendations together with copies thereof shall be given to the parties to the proceeding. The written notice shall also inform them of the right to a rehearing before the judge.
“(d) A rehearing before the judge may be ordered by the judge at any time and shall be ordered if any party files a written request therefor within 14 days after receipt of the referee’s written notice. Upon rehearing, when adequate records have been kept in the proceedings before the referee, the court shall review the record and, in the discretion of the judge, may admit new evidence. If the referee has not kept adequate records, the rehearing shall be de novo.
“(e) If a hearing before the judge is not requested or ordered or the right thereto is waived, the findings and recommendations of the referee, if confirmed by an order of the judge or as modified by the judge, shall become the decree of the court.”

Because Referee Powell’s order was neither confirmed by a judge nor reheard by a judge, the order was not a final judgment and was, therefore, not appealable. “A juvenile court referee’s order is not a final judgment, and, therefore, not appeal-able until it is confirmed by a juvenile court judge.” D.L. v. T.A., 827 So.2d 127, 129 (Ala.Civ.App.2002). See also Blume v. State, 678 So.2d 1122 (Ala.Civ.App.1996).

The appeal is due to be dismissed.

APPEAL DISMISSED.

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

      . Pursuant to § 12-15-30(c)(2), Ala.Code 1975, the juvenile court has original jurisdiction in proceedings
      “[wjhere it is alleged that a child’s rights are improperly denied or infringed in proceedings resulting in suspension, expulsion or exclusion from a public school.”


author: THOMAS, Judge. PITTMAN, Judge, BRYAN, Judge,

text:
    Harvey MARTIN and David Whitten v. Robert PATTERSON, individually, and d/b/a Patterson Construction.
    2050781.
    Court of Civil Appeals of Alabama.
    June 8, 2007.

      Chris Van Petten, Pelham, for appellants.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

Robert Patterson, individually, and doing business as Patterson Construction, sued Harvey Martin and David Whitten in April 2005, alleging that Martin and Whit-ten had intentionally caused him emotional distress and seeking damages. Patterson also filed a motion for a temporary restraining order prohibiting Martin and WTiitten from committing certain types of conduct to harass Patterson; the trial court granted that motion. Patterson later amended his complaint to also allege that Martin and Whitten had invaded his privacy. After several ore tenus proceedings, the trial court entered a judgment holding that no intentional infliction of emotion distress had occurred, that Martin and Whitten were liable for the invasion of Patterson’s privacy, and making the restraining order permanent. The trial court also awarded Patterson $10 in damages for Martin and Whitten’s invasion of his privacy. Martin and Whitten filed a postjudgment motion that was denied by operation of law; they then timely appealed to this court. We affirm in part and reverse in part.

Factual Background

Although the allegations Patterson made at trial were related to specific instances of conduct on the part of Martin and Whit-ten, it appears that the parties had previously developed their animosity toward each other. In approximately 2000 Martin formed a nonprofit organization named the “Attalla Coalition.” According to Martin, the purpose of the Attalla Coalition was to keep the residents of the City of Attalla informed of the city’s actions and to represent the residents’ interests. Martin served on the Attalla City Council at the time of the trial. During a recent election Martin ran for the office of mayor of Attal-la and Whitten ran for a position on the Attalla City Council; both lost those elections. At some point before the trial court’s proceedings, Martin had requested from the City of Attalla information relating to the bid process by which Patterson had been awarded contracts with the City of Attalla. It was following those requests that Patterson brought his action against Martin and Whitten.

The trial court granted Patterson’s request for a temporary restraining order on April 15, 2005, prohibiting Martin and Whitten from “contacting, following, threatening, intimidating, harassing in any manner, or being within 500 feet of the plaintiff.” In May 2005, the trial court conducted a hearing to determine whether to continue the temporary restraining order or enter a preliminary injunction.

During that hearing Shane Jenkins, a process server employed by Patterson’s attorney, testified that upon delivery of the complaint and temporary restraining order to Martin and Whitten he had observed Whitten make several statements about Patterson — including that if Patterson “doesn’t watch what he does he is going to end up just like his brother.” Jenkins testified that he understood Whitten to be alluding to a brother of Patterson’s who had been killed years earlier after being stabbed in the throat.

According to Patterson’s May 2005 testimony, Martin had driven his van on multiple occasions past locations where Patterson and his employees were working on construction ■ projects for — and in — the City of Attalla. Patterson testified that when Martin drove by he would yell from his open window at Patterson and his work crew, honk the horn of his vehicle, laugh, and point at a video camera that was mounted on his dashboard. Specifically, Patterson alleged that Martin would yell “O’Rear,” at him or his crew; “O’Rear” was the last name of the mayor of the City of Attalla at that time. Patterson stated that Martin’s conduct disrupted both his and his employees’ ability to concentrate on the proper pouring of concrete during their construction projects. Martin’s and Whitten’s conduct was particularly stressful to Patterson, he testified, because of the demanding task of his particular concrete construction projects. Patterson added that many of his projects were conducted on busy highways, and he indicated that the added stress caused by Martin’s conduct put both himself and his employees in greater danger from passing traffic. Several employees of Patterson’s also testified that the work crew’s ability to perform their jobs was disrupted because of Martin’s conduct. One employee stated that Patterson typically became angry and difficult to work for because of Martin’s conduct.

The trial court continued the May 2005 hearing to a later date to afford Martin and Whitten an opportunity to refute the evidence adduced by Patterson with their own witnesses. Following the May 2005 hearing, the trial court ordered that the temporary restraining order of April 15, 2005, continue in force, but it subsequently removed Whitten from the restrictions of that order.

In October 2005, the trial court conducted a second ore tenus proceeding, during which Martin and Whitten testified and contradicted Patterson’s allegations, specifically denying that they had engaged in the conduct Patterson had alleged. Other witnesses for Martin and Whitten provided alibis for the two men.

Following the October 2005 proceeding, the trial court entered a judgment stating, in relevant part:

“This cause came on for trial on [Patterson’s] complaints for Intentional Infliction of Emotional Distress, Invasion of Privacy and for Temporary/Permanent Restraining Order and on [Martin and Whitten’s] Motion to Vacate/Dissolve Court’s previous Order granting temporary relief. After consideration of the evidence, the Court finds as follows:
“1. [Patterson] presented evidence, if believed [that] would entitle him to the relief requested and for a permanent restraining order. The testimony offered by [Martin and Whitten] if believed would require a finding that [Patterson’s] complaints are not proven by substantial evidence.
“2. The Court based on the foregoing finds against [Patterson] and in favor of [Martin and Whitten] on the issue of Intentional Infliction of Emotional Distress and in favor of [Patterson] and against [Martin and Whitten] on the issue of Invasion of Privacy and assesses [Patterson’s] damages at $10 and costs.
“3. The Court’s Restraining order of April 15, 2005 is hereby made permanent and any bond money posted is ordered refunded.”

Martin and Whitten filed a motion for a new trial or, in the alternative, a “motion to reconsider,” alleging that the trial court had erred in determining that they had invaded Patterson’s privacy and in not providing proper notice that it would conduct a hearing on the merits of a permanent injunction. Martin and "Whitten’s post-judgment motion was denied by operation of law; they then timely appealed to this court.

Discussion

Martin and Whitten present three arguments for our consideration: (1) that no evidence was presented as to Whitten’s conduct that would indicate that a preliminary injunction should be imposed upon him; (2) that both Martin and Whitten are entitled to a new trial on the merits on the issue of invasion of privacy; and (3) that both Martin and Whitten are entitled to a new trial on the merits on Patterson’s claim seeking injunctive relief because the parties had not agreed to consolidate the hearings on the preliminary injunction with a hearing on the merits of a permanent injunction.

The Injunction

For ease of analysis, we address Martin and Whitten’s arguments regarding the injunction together. Martin and Whitten first argue that Patterson did not meet the requirements necessary for a preliminary injunction against Whitten; however, the trial court entered a permanent injunction. The trial court’s judgment states that the matter that was tried included Patterson’s request for a “Temporary/Permanent Restraining Order,” and the court specified in its judgment that it was making permanent the previously entered restraining order. Our supreme court explained the difference between a preliminary injunction and a permanent injunction as follows:

“To be entitled to a permanent injunction, a plaintiff must demonstrate success on the merits, a substantial threat of irreparable injury if the injunction is not granted, that the threatened injury to the plaintiff outweighs the harm the injunction may cause the defendant, and that granting the injunction will not dis-serve the public interest. Clark Constr. Co. v. Pena, 930 F.Supp. 1470 (M.D.Ala.1996). The elements required for a preliminary injunction and the elements required for a permanent injunction are substantially similar, except that the movant must prevail on the merits in order to obtain a permanent injunction, while the movant need only show a likelihood of success on the merits in order to obtain a preliminary injunction. Pryor v. Reno, 998 F.Supp. 1317 (M.D.Ala.1998) [overruled on other grounds by Pryor v. Reno, 171 F.3d 1281 (11th Cir.1999)]. The purpose of a preliminary injunction is to preserve the status quo until a full trial on the merits can finally determine the contest. [University of Texas v.] Camenisch, 451 U.S. [390,] 395, 101 S.Ct. 1830[, 1834 (1981) ].”

TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1242 (Ala.1999). The standard of review applicable to each type of injunction is also different. “A preliminary injunction is reviewed under an abuse-of-discretion standard, whereas a permanent injunction is reviewed de novo.” TFT, 751 So.2d at 1241 (citing Smith v. Madison County Comm’n, 658 So.2d 422, 423 n. 1 (Ala.1995)).

Martin and Whitten argue that a preliminary injunction was wrongly entered against Whitten and cite only to cases that pertain to the grant of a preliminary injunction to support their argument. Thus, the arguments made by Martin and Whitten regarding the propriety of entering a preliminary injunction are inapposite to the issue whether the trial court should have granted a permanent injunction. “ ‘[I]t is not the function of [a] Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’ ” Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)); see also Rule 28(a)(10), Ala. R.App. P. Consequently we will not further address this issue.

Martin and Whitten’s second argument regarding the injunction is that they did not receive proper notice that a hearing on the merits of a permanent injunction would be held, as opposed to a hearing on the propriety of a preliminary injunction. The primary case Martin and Whitten rely upon for this argument is Woodward v. Roberson, 789 So.2d 853 (Ala.2001). In Woodward, our supreme court noted:

“It is appropriate for the trial court, either before or after the commencement of the hearing on an application for a preliminary injunction, to order that the trial of the action on the merits be consolidated with that hearing. Rule 65(a)(2), Ala. R. Civ. P. However, such a consolidation must conform to the rights of the litigants to reasonable notice. Pughsley v. 3750 Lake Shore Drive Coop. Bldg., 463 F.2d 1055 (7th Cir.(Ill.)1972) (per then Circuit Judge John Paul Stevens).”

Woodward, 789 So.2d at 855. Pughsley v. 3750 Lake Shore Drive Coop. Bldg., 463 F.2d 1055 (7th Cir.1972), which is cited in Woodward, also stated that “the parties should be given a clear opportunity to object, or to suggest special procedures, if a consolidation is to be ordered.” 463 F.2d at 1057.

In determining that the trial court had entered a preliminary injunction and not a permanent injunction in Woodward, our supreme court distinguished the facts in that case from those in TFT by observing that “the parties in TFT agreed to the consolidation of the hearing on the preliminary-injunction request with a hearing on the merits.” 789 So.2d at 855 (citing TFT, 751 So.2d at 1241-42). In regard to that agreement our supreme court noted in TFT that “the trial court asked the parties during the hearing, ‘Are we going to combine this hearing with any subsequent hearing, for the record?’ and to that question counsel for each of the parties responded, Tes, sir.’ ” 751 So.2d at 1242. Although at the conclusion of the second hearing in this case the parties agreed to “submit it” for the trial court’s consideration, such an agreement is not similar to the agreement in TFT. In fact, the agreement to submit the issue for the trial court’s determination in this case is similar to dialogue between the trial court and the attorneys in Pughsley, supra. In that case the trial court stated:

“ ‘Now I am going to insist, counsel, that whatever your total case is, and I want to give you every reasonable opportunity to put it in, that you complete it before I request the defendants to go ahead.
“ ‘Now, can you produce your witness tomorrow....’”

463 F.2d at 1056. In determining that the trial court’s statement in Pughsley did not meet the notice requirement under Rule 65(a)(2), Fed.R.Civ.P., the United States Court of Appeals for the Seventh Circuit stated that the “[plaintiffs’ counsel could reasonably have understood the judge as merely requiring a presentation on the following day of the remainder of plaintiffs’ ‘total case’ in support of their pending motion. That was the only hearing then in progress.” Id. at 1057. Similarly, within the context of the overall trial-court proceedings in this case, it is apparent that the parties intended to submit the question whether the preliminary injunction should be entered for the trial court’s consideration — they did not agree to submit the question whether a permanent injunction should be entered. However, our analysis does not end with that determination, because:

“A party contesting the entry of final judgment at the preliminary injunction stage, however, must demonstrate prejudice as well as surprise. The action may be remanded to the trial court for a determination of whether prejudice has resulted. On the other hand, if it is clear that consolidation did not detrimentally affect the litigants, as, for example, when the parties in fact presented their entire cases and no evidence of significance would be forthcoming at trial, then the trial court’s consolidation will not be considered to have been improper.”

11A Charles Allan Wright et al., Federal Practice and Procedure: Civil § 2950 (2d ed.1995) (footnotes omitted); see also Rule 45, Ala. R.App. P. (providing that “[n]o judgment may be reversed or set aside, nor new trial granted in any ... case ... for error as to any matter of ... procedure, unless ... after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties”). In this case Martin and Whitten have not demonstrated that they were prejudiced by the trial court’s consolidation of the hearing on the preliminary injunction with a hearing on the merits of a permanent injunction. Indeed, the trial court afforded Martin and Whitten a chance to present their evidence and arguments against any injunction by holding a second hearing. Martin and Whitten do not argue that did not have a chance to present their entire case or that there would be any additional “evidence of significance” that “would be forthcoming at trial.” Therefore, we affirm the judgment of the trial court as to this issue.

The Invasion-of-Privacy Claim

Martin and Whitten’s third argument is that they are entitled to a new trial on the merits of Patterson’s invasion-of-privacy claim. We first note that in this case the trial court heard ore tenus testimony.

“ ‘[WJhen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ Philpot v. State, 843 So.2d 122, 125 (Ala.2002). Moreover, when a trial court makes no specific findings of fact, ‘this Court will assume that the trial judge made those findings necessary to support the judgment.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992). Under the ore tenus rule, ‘ “appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence.” ’ Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331, 345 (Ala.2002) (quoting Ex parte Pielach, 681 So.2d 154, 155 (Ala.1996)).”

New Props., L.L.C. v. Stewart, 905 So.2d 797, 799 (Ala.2004). Concerning the elements of the tort of invasion of privacy, our supreme court has defined that tort “ ‘as the intentional wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.’” Rosen v. Montgomery Surgical Ctr., 825 So.2d 735, 737 (Ala.2001) (quoting Carter v. Innisfree Hotel, Inc., 661 So.2d 1174, 1178 (Ala.1995)). Recently our supreme court stated:

“The tort of
“ ‘invasion of privacy consists of four limited and distinct wrongs: (1) intruding into the plaintiffs physical solitude or seclusion; (2) giving publicity to private information about the plaintiff that violates ordinary decency; (3) putting the plaintiff in a false, but not necessarily defamatory, position in the public eye; or (4) appropriating some element of the plaintiffs personality for a commercial use.’
“Johnston v. Fuller, 706 So.2d 700, 701 (Ala.1997). Each of these categories of invasion of privacy has distinct elements, and each category establishes a separate privacy interest that may be invaded. Regions Bank v. Plott, 897 So.2d 239 (Ala.2004).”

S.B. v. Saint James Sch., 959 So.2d 72, 90 (Ala.2006). It is clear from Patterson’s complaint, and from the trial-court proceedings, that Patterson sought recovery under the first branch of the tort of invasion of privacy: intrusion into his physical solitude or seclusion.

“In Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705 (Ala.1983), this Court adopted the Restatement (Second) of Torts definition of the wrongful-intrusion branch of the invasion-of-privacy tort:
“ ‘One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.’ ”

Johnston v. Fuller, 706 So.2d 700, 702 (Ala.1997). The commentary to the Restatement definition of this tort adds:

“The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs. Thus there is no liability for the examination of a public record concerning the plaintiff, or of documents that the plaintiff is required to keep and make available for public inspection. Nor is there liability for observing him or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters.”

Restatement (Second) of Torts § 652B (1977) cmt. c (emphasis added). This commentary is consistent with the caselaw of this state. For example, in Johnson v. Stewart, 854 So.2d 544, 549 (Ala.2002) (citing I.C.U. Investigations, Inc. v. Jones, 780 So.2d 685 (Ala.2000)), our supreme court stated that, “generally, the observation of another person’s activities, when that other person is exposed to the public view, is not actionable under the wrongful-intrusion branch of the invasion-of-privacy tort.” See also Key v. Compass Bank, Inc., 826 So.2d 159, 165 (Ala.Civ.App.2001) (“Normally, there is no liability for photographing a person in a public place.”). Additionally, we note that “‘[t]he thing into which there is intrusion or prying must be, and be entitled to be, private.’ ” Hogin v. Cottingham, 533 So.2d 525, 531 (Ala.1988) (W. Page Keeton et al., Prosser and Keeton on the Law of Torts, p. 855 (5th ed.1984)). Thus, it seems that generally “surveillance is not an actionable intrusion as long as it is conducted in a reasonable and nonobtrusive manner.” 77 C.J.S. Right of Privacy and Publicity § 27. See also Prosser and Keeton on the Law of Torts, p. 855 (stating that “[o]n the public street, or in any other public place, the plaintiff has no legal right to be alone; and it is no invasion of his privacy to do no more than follow him about and watch him there”). On the other hand, “[i]t is true ‘that the “wrongful intrusion” privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature.’ ” Johnson, 854 So.2d at 549 (quoting Phillips v. Smalley Maint. Servs., Inc., 435 So.2d 705, 711 (Ala.1983)) (emphasis added). Indeed, our courts have held that “[o]ne’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” Phillips, 435 So.2d at 711.

To summarize, a wrongful intrusion may occur in a public place, so long as the thing into which there is intrusion or prying is entitled to be private. See Phillips, supra, and Hogin, 533 So.2d at 531 (citing Prosser and Keeton on the Law of Torts, p. 855). Assuming that the matter is entitled to be private, then the court will consider two primary factors in determining whether an intrusion is actionable: (1) the means used, and (2) the defendant’s purpose for obtaining the information. See Hogin, 533 So.2d at 531 (citing Prosser and Keeton on the Law of Torts, p. 855), and Johnson v. Corporate Special Servs., Inc., 602 So.2d 385 (Ala.1992); see also 77 C.J.S. Right of Privacy and Publicity § 27 (2006) (citing Hogin, and stating that “[a] primary factor to be considered in determining whether there has been an intrusion is the means used”), and Jenelle Mims Marsh & Charles W. Gamble, Alabama Law of Damages § 36:38 (5th ed. 1049-50).

Applying these principles and the description in § 652B of the Restatement (Second) of Torts regarding intrusion upon seclusion, we first point out that the wrongful intrusion in this case was alleged, in essence, to have been to Patterson’s emotional sanctum. The intrusion, however, was not into a matter of a sufficiently personal nature to rise to the level of a wrongful intrusion into Patterson’s privacy. As an example, in contrast, in Phillips, 435 So.2d at 711, our supreme court held that the facts of that case supported such a claim when, among other things, the plaintiff in the case had been subjected to intrusive demands, threats, and inquiries into the nature of sex between her and her husband — all occurring two or three times each week while she was at her workplace. In this case no such personal inquiries or demands were made.

Even if we were to assume that the alleged intrusion into Patterson’s emotional sanctum was of a sufficiently personal nature to support a claim, we would hold that in this case the methods used by Martin and Whitten to observe and perhaps film Patterson were not “highly offensive to a reasonable person.” As stated in Prosser and Keeton on the Law of Torts, supra, it is clear “that there must be something in the nature of prying or intrusion, and that mere noises which disturb a church congregation, or bad manners, harsh names, and insulting gestures in public, are not enough [to state a claim for wrongful intrusion].” Id. at 855. Granted, in some cases the frequency and persistence of unwanted intrusion may constitute a wrongful intrusion into a tort claimant’s privacy. See generally Restatement (Second) of Torts § 652B cmt. d (stating as an example that it “is only when ... telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff, that [it] becomes a substantial burden to his existence, that his privacy is invaded”). Significantly, however, the events occurring in this case took place in public, not in Patterson’s home, and as such Patterson should have expected a diminished level of privacy. In contrast to the defendant’s repulsive behavior in Phillips, Martin and Whitten only drove by Patterson’s work site approximately six times over a period of approximately two months, honked the horn of their vehicle, yelled the mayor of Attalla’s name, laughed, and indicated that they were filming him. Their conduct toward Patterson may have been annoying and immature, but it was not “highly offensive to a reasonable person.” Our courts have been unwilling to create a broad privacy action, with no metes and bounds, that would extend beyond one’s dwelling, papers, and private records, creating unknown dangers to unsuspecting routine inquirers. Johnson, 854 So.2d at 548; see also Myrick v. Barron, 820 So.2d 81, 88 (Ala.2001) (on application for rehearing) (Houston, J., concurring specially and stating that “since at least 1997 [when Johnston v. Fuller, 706 So.2d 700 (Ala.1997), was decided], the invasion-of-privacy claim based upon wrongful intrusion in Alabama has been limited to one’s dwelling, papers, and private records”).

Although Martin and Whitten requested a new trial, in doing so they contested the sufficiency of the evidence to support the judgment. Therefore, because we find no substantial evidence to support the judgment of the trial court on Patterson’s claim of invasion of privacy, that judgment is reversed and the case is remanded for the entry of a judgment consistent with this opinion. See Discovery Zone v. Waters, 758 So.2d 515, 518 (Ala.Civ.App.1999).

Conclusion

We affirm the judgment of the trial court as to the two issues Martin and Whitten presented regarding the permanent injunction because they did not present any argument regarding the merits of the permanent injunction and because they did not show that they were prejudiced by the trial court’s decision to consolidate a hearing on the merits of the injunction with the hearing on the preliminary injunction. We reverse the trial court’s judgment in regard to Patterson’s invasion-of-privacy claim because Martin’s and Whit-ten’s conduct did not violate a privacy right of a sufficiently personal nature to support a claim of wrongful intrusion into Patterson’s privacy. Because no substantial evidence supported the trial court’s judgment regarding the invasion-of-privacy claim, that portion of the judgment is reversed and the case is remanded for the entry of a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MOORE, J., concurs.

PITTMAN, J., concurs specially.

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

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

PITTMAN, Judge,

concurring specially.

I concur in the main opinion, but I note that it remands the cause for the entry of a judgment in favor of Harvey Martin and David Whitten even though they did not challenge the sufficiency of the evidence by means other than a new-trial motion. In King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So.2d 714 (Ala.1987), our Supreme Court held that if insufficiency of the evidence to support a judgment based upon a jury verdict is raised in a new-trial motion instead of in a motion under Rule 50, Ala. R. Civ. P., “the only relief that can be granted is a new trial” in the event of a reversal. 518 So.2d at 716. However, because the judgment in this case was entered by the trial court after a nonjury trial, a new-trial motion will suffice to preserve an evidentiary-suf-ficiency question for appellate review (regardless of whether findings of fact are made). See New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala.2004). Because there is no requirement in a nonjury setting that corresponds to the requirement prevailing in a jury setting that a party file a dispositive motion as an absolute prerequisite to a sufficiency challenge, King Mines does not require a new trial on remand in this case.

BRYAN, Judge,

concurring in the result in part and dissenting in part.

I respectfully dissent insofar as the main opinion reverses the judgment in favor of Robert Patterson on his invasion-of-privacy claim. On the basis of the ore tenus evidence before it, the trial court could have found that Harvey Martin and David Whitten had repeatedly shadowed Patterson for the purpose of intimidating and harassing him and that Whitten had threatened Patterson’s life. That conduct is actionable under the wrongful-intrusion prong of the tort of invasion of privacy. Cf. Alabama Elec. Coop., Inc. v. Partridge, 284 Ala. 442, 445, 225 So.2d 848, 850 (1969) (noting with approval that other jurisdictions had held that “violation of the right of privacy may be actionable where the investigation of a person being watched, shadowed, or kept under surveillance is pursued in an offensive or improper manner”). The suggestion that a reasonable person would not find Martin’s and Whit-ten’s conduct highly offensive is absurd— indeed, the Alabama Legislature has classified such conduct as the crime of stalking, which is a felony. See § 13A-6-90(a), Ala.Code 1975 (“A person who intentionally and repeatedly follows or harasses another person and who makes a credible threat, either expressed or implied, with the intent to place that person in reasonable fear of death or serious bodily harm is guilty of the crime of stalking.”).

I concur in the result with regard to the other aspects of the main opinion.

      . Patterson never offered an explanation for why Martin may have been inclined to yell "O’Rear.” It would appear from the context of this case, however, that Martin's intent was to indicate to Patterson that he was keeping surveillance of Patterson and to suggest that there was a shady connection between Mayor O’Rear and Patterson.

      . The trial court’s reference to a previous order may not be sufficient to meet the specificity requirements of a permanent injunction, see Rule 65(d)(2), Ala. R. Civ. P. (stating that "[ejvery order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained”); however, Martin and Whit-ten have not raised compliance with this rule as an issue in their appeal.

      . Additionally, although Martin and Whitten assert that there was no evidence presented by Patterson that "would show guilt relating to any action on the part of Whitten,” we note that Whitten admitted that he rode by Patterson’s work site with Martin on at least one occasion; also, when Whitten was served with Patterson's lawsuit, Whitten allegedly made threatening comments regarding Patterson.

      . Rule 65(a)(2), Fed.R.Civ.P., is identical to Rule 65(a)(2), Ala. R. Civ. P.

      . To the extent the trial court could have been inclined to determine that Patterson sought relief on the basis that Martin’s and Whitten’s actions put Patterson in a false light before the public, and, thus invaded his privacy under that category of the tort, we note that Patterson made no effort to indicate that any implied allegations of improper bidding or an improper relationship with the mayor’s office were false. "[U]nlike defamation, truth is not an affirmative defense to a false-light claim; rather, 'falsity' is an element of the plaintiff's claim, on which the plaintiff bears the burden of proof.” Regions Bank v. Plott, 897 So.2d 239, 244 (Ala.2004)


text:
    Sharon K. Owings FILER v. Philip S. OWINGS.
    2060311.
    Court of Civil Appeals of Alabama.
    June 15, 2007.

      Gregory S. Graham of Mitchell & Graham, P.C., Childersburg, for appellant.
    J.N. Montgomery, Jr., of Stringer, Montgomery & Montgomery, Talladega, for appellee.
   THOMPSON, Presiding Judge.

Sharon K, Owings Filer appeals from the trial court’s judgment denying her complaint seeking to register a 1997 Colorado judgment entered against Phillip S. Owings. We reverse and remand with instructions.

On February 7, 1972, the Colorado District Court for Jefferson County (“the Colorado court”) entered a child-support order (“the 1972 child-support order”) requiring Owings to pay child support in monthly installments through August 28, 1986. On January 8, 1997, following a motion filed by Filer to reduce Owings’s child-support arrearages to a money judgment, the Colorado court entered a judgment (“the 1997 money judgment”) in favor of Filer and against Owings for $14,250, representing child-support ar-rearages, plus $35,179.62 in accrued interest on those arrearages.

On April 20, 2006, Filer filed a complaint in the trial court seeking to register the 1997 money judgment. Filer also sought an award for interest that had accrued since the entry of the 1997 money judgment; that claim increased the total amount Filer sought to $147,685. In her complaint, and in a subsequent amended complaint, Filer stated that she was seeking to register the 1997 money judgment pursuant to the Alabama Uniform Enforcement of Foreign Judgments Act (“the UEFJA”), which is codified at § 6-9-230 et seq., Ala.Code 1975. On May 18, 2006, Owings, acting pro se, filed a document contesting the attempt to register the 1997 money judgment and requesting a hearing. Owings later retained counsel.

The trial court conducted an ore tenus hearing on September 27, 2006. On October 25, 2006, the trial court entered a judgment denying Filer’s complaint. Filer timely appealed to this court.

Though Filer makes several arguments on appeal, we address only one of those arguments because we find it to be dispositive of the appeal. We note initially that the relevant facts are not disputed by the parties and that the only questions presented to this court involve review of the trial court’s application of the law to those facts. “Where the question on appeal is purely a question of law, the ore tenus rule does not apply, and appellate review is de novo.” Brasili v. Brasili, 827 So.2d 818, 818 (Ala.Civ.App.2002).

Filer argues that the trial court erred by applying the statute of limitations to the child-support-payment due dates under the 1972 child-support order rather than to the date of entry of the 1997 money judgment. The trial court found that Filer’s attempted registration of the judgment was time-barred under the Alabama Uniform Interstate Family Support Act (“the UIFSA”), § 30-3A-101 et seq., Ala.Code 1975. The trial court found that, because child-support payments are final judgments on the day that they are due, and because § 6-2-32, Ala.Code 1975, limits the time of enforcement of final judgments to 20 years, the last date that Filer could recover child-support payments was August 28, 2006, 20 years after the date that the last child-support payment was due. The trial court concluded that, at the time of its September 27, 2006, judgment, Filer was not entitled to recover past-due child-support payments under either the 1972 child-support order or the 1997 money judgment, because she had failed to enroll the 1972 child-support order in Alabama on or before August 28, 2006.

In reaching its judgment, the trial court found that Filer’s attempt to register the 1997 money judgment was governed by the UIFSA. The UIFSA was enacted to address and simplify, among other things, the process of enforcing in Alabama a child-support order issued by another state. See § 30-3A-101 through -906, Ala. Code 1975; and Mollohan v. Jelley, 925 So.2d 207, 210-11 (Ala.Civ.App.2005). Section 30-3A-601, a part of the UIFSA, provides: “A support order or an income-withholding order issued by a tribunal of another state may be registered in this state for enforcement.” Section 30-3A-101(22) defines “support order” as “a judgment, decree, or order, whether temporary, final, or subject to modification, for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, or reimbursement, and may include related costs and fees, interest, income withholding, attorney’s fees, and other relief.”

Filer did not seek to register the 1997 money judgment for enforcement under the UIFSA; she sought to register the 1997 money judgment for enforcement under the UEFJA. The remedies provided by the UIFSA for enforcement of foreign support orders “are cumulative and do not affect the availability of remedies under other law.” § 30-3A-103. Though the UIFSA may have provided additional remedies to Filer to enforce the 1997 money judgment, the availability or lack thereof of those remedies does not affect her attempt to enforce the judgment under the UEFJA. As discussed below, we conclude that, under the UEFJA, Filer’s attempt to register the 1997 money judgment was not barred by the applicable statute of limitations. Therefore, we decline to address the possible application of the UIFSA.

In her complaint, Filer cites the UEFJA as authority allowing the registration of the 1997 money judgment. The UEFJA was enacted in Alabama and other states in order to simplify and make uniform the process of domesticating foreign judgments that are entitled to full faith and credit. See § 6-9-230 through -238. The Full Faith and Credit Clause of the United States Constitution requires Alabama courts to “ ‘give a foreign judgment at least the res judicata effect which would be accorded in the state which rendered it.’” Newton v. Newton, 686 So.2d 347, 348 (Ala.Civ.App.1996)(quoting Feore v. Feore, 627 So.2d 411, 413 (Ala.Civ.App.1993)).

This court, in discussing registration of judgments under the UEFJA, explained:

“When a foreign judgment is authenticated and produced at trial, there is a presumption that the court rendering the judgment had the jurisdiction to do so, and the burden is placed on the party challenging the judgment to overcome the presumption. [Feore v. Feore, 627 So.2d 411, 413 (Ala.Civ.App.1993)]; Greene v. Connelly, 628 So.2d 346, 351 (Ala.1993). Furthermore, [the UEFJA] provides that ‘a [properly authenticated and filed foreign judgment] has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a circuit court and may be enforced or satisfied in like manner.’ § 6-9-232; Greene, supra, at 350.
“Before enforcing a foreign judgment, Alabama courts may inquire into the jurisdiction of the foreign court. ‘The scope of the inquiry is limited to “(1) whether the issue of jurisdiction was fully and fairly litigated by the foreign court, and (2) whether the issue of jurisdiction was finally decided by the foreign court.” ’ Feore, supra, at 413 (quoting Alston Electric Supply Co. v. Alabama Electrical Wholesalers, Inc., 586 So.2d 10, 11 (Ala.Civ.App.1991)). If it finds that the foreign court had jurisdiction, then it must enforce the judgment.”

McGouryk v. McGouryk, 672 So.2d 1300, 1302 (Ala.Civ.App.1995).

Amounts due under a child-support order are final judgments on the dates that the payments are due. Mollohan v. Jelley, supra. The statute of limitations found at § 6-2-32, Ala.Code 1975, provides: “Within 20 years, actions upon a judgment or decree of any court of this state, of the United States or of any state or territory of the United States must be commenced.” If Filer were seeking execution of the past-due child-support payments under the 1972 child-support order, she would have to contend with the § 6-2-32 limitation on enforcement of judgments, and the statute of limitations would have commenced on the date that each payment was due. See Mollohan, 925 So.2d at 213. Filer, however, is not seeking enforcement of the payments under the 1972 child-support order; rather, Filer is seeking enforcement of the 1997 money judgment.

No reported Alabama cases appear to address the issue of when the 20-year period in § 6-2-32 should begin to run when a party has obtained a money judgment reducing a child-support arrearage and interest due on that arrearage to a fixed sum. However, several cases from other jurisdictions have held that, under statutes of limitations similar to Alabama’s, when a party seeks enforcement of a money judgment that reduced to a fixed-sum arrearages due under an earlier child-support order, the limitations period should be measured from the date the money judgment was entered. See Smith v. Baumgartner, 665 N.W.2d 12, 17 (N.D.2003); and Twaddell v. Anderson, 136 N.C.App. 56, 69, 523 S.E.2d 710, 719 (1999).

In Smith v. Baumgartner, the wife sought to enforce a June 11, 1984, money judgment that reduced to a fixed sum child-support arrearages that had accrued from August 1, 1975, until May 9, 1984. The applicable statute of limitations, like Alabama’s § 6-2-32, limited the enforcement of judgments to 20 years after the date of their entry. The Supreme Court of North Dakota held that, because the wife was seeking enforcement of the June 11, 1984, money judgment and not the earlier child-support order, the 20-year period began to run on the date that the 1984 money judgment was entered, not on the dates that the payments were due under the earlier child-support order. Smith v. Baumgartner, 665 N.W.2d at 17.

Similarly, in Twaddell v. Anderson, the Court of Appeals of North Carolina, applying a 10-year statute of limitations, held that “ ‘[ojnee the amount of arrearages [due under a child-support order] is reduced to judgment, ... that judgment is entitled to full enforcement in North Carolina for a period of ten years after its entry.’ ” Twaddell v. Anderson, 136 N.C.App. at 69, 523 S.E.2d at 719 (quoting Silvering v. Vito, 107 N.C.App. 270, 275, 419 S.E.2d 360, 363 (1992))(emphasis omitted).

Based on the remedies available to a party opposing domestication of a foreign judgment and the nature of the statute-of-limitations defense, we agree with the result reached in Smith v. Baumgartner and Twaddell v. Anderson. Accordingly, we conclude the 20-year limitations period provided in § 6-2-32 began to run when the 1997 money judgment was entered.

When a party seeks domestication of a valid foreign judgment under the UEFJA, the only basis to challenge domestication is that the foreign court did not have jurisdiction to enter the judgment. McGouryk, 672 So.2d at 1302. In Colorado, the statute of limitations is an affirmative defense that may be waived; the statute of limitations does not impose jurisdictional requirements on the Colorado courts. Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 77 (Colo.Ct.App.1993). Any statute-of-limitations defense that could have been raised as to the payments ordered under the 1972 child-support order should have been raised, if at all, in Colorado when Filer sought the entry of the 1997 money judgment. See id. The statute-of-limitations defense is just that, a defense. We have no record of the Colorado proceedings that occurred before the entry of the 1997 money judgment. The record does not indicate whether Owings waived the statute-of-limitations defense, whether he raised it unsuccessfully, or whether he raised it successfully as to only a portion of his arrearages. Regardless of what happened during the Colorado proceedings in reference to the statute-of-limitations defense, the jurisdiction of the Colorado court was unaffected. Id. Therefore, Owings has not demonstrated that the Colorado court lacked jurisdiction to enter the 1997 money judgment.

Filer’s April 20, 2006, Alabama complaint seeking registration of the 1997 money judgment was filed well within the 20-year period that Alabama allows for enforcement of the 1997 money judgment under § 6-2-32. Accordingly, we agree with Filer that the trial court erred in denying her complaint seeking to register the 1997 money judgment.

Therefore, we reverse the judgment of the trial court and remand the case for the trial court to enter an order consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.