author: BOLIN, Justice.

text:
    Ex parte BUFFALO ROCK COMPANY. (In re Daniel Brensinger v. Buffalo Rock Company et al.).
    1041187.
    Supreme Court of Alabama.
    April 28, 2006.

      Joseph H. Driver, Bennett L. Pugh, and Vincent Swiney of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner.
    Cecil G. Duffee III, Birmingham, for respondent.
   BOLIN, Justice.

Buffalo Rock Company petitions this court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order of March 28, 2005, precluding Buffalo Rock from asserting the affirmative defense of collateral estoppel to Daniel Brensinger’s claim alleging retaliatory discharge in violation of § 25-5-11.1, Ala.Code 1975.

Daniel Brensinger sued his employer, Buffalo Rock, on October 31, 2003, seeking workers’ compensation benefits for injuries he sustained during the course of his employment with Buffalo Rock. Brensinger also asserted claims of negligence, product liability, and co-employee liability pursuant to § 25-5-11, Ala.Code 1975, against other defendants. Brensinger amended his complaint in March 2004 to assert a claim of retaliatory discharge against Buffalo Rock pursuant to § 25-5-11.1, Ala.Code 1975. Brensinger alleged that he had been wrongfully terminated on February 5, 2004, solely because he had filed a workers’ compensation claim against Buffalo Rock.

Brensinger also sought unemployment-compensation benefits from Buffalo Rock. Brensinger’s claim was denied by the unemployment-compensation claims examiner for the Department of Industrial Relations (“DIR”). Brensinger appealed the examiner’s decision to the hearings and appeals division of DIR. The administrative hearing officer for the hearings and appeals division denied Brensinger’s claim on May 18, 2004, finding in part, as follows:

“[Brensinger] last worked for [Buffalo Rock] on January 19, 2004. He had been employed since February 7, 2000, last working as a filler operator. [Bren-singer] left this employment voluntarily by abandoning his job. After his last day of work, [Brensinger] was next scheduled to work on January 22, 2004. He did not report for work that day and did not contact [Buffalo Rock] to report his absence. [Brensinger] did not report for work or contact [Buffalo Rock] to report off on January 23, 2004. He was next scheduled to work on January 27, 2004, and January 28, 2004. [Bren-singer] did not report for work or call [Buffalo Rock] to report his absence on those days. [Brensinger] was suffering from a repetitive motion injury to his hand and was away from work on the advice of a doctor. When he returned to work on January 31, 2004, he was not allowed to work and was sent home with instructions to meet with a representative from the personnel department. [Brensinger] was aware of [Buffalo Rock’s] requirement to report off each day that he was absent from work. When he offered no suitable explanation for failing to report off, he was terminated in accordance with [Buffalo Rock’s] policy.”

The hearing officer concluded that Bren-singer had abandoned his job and that he was therefore disqualified pursuant to § 25-4-78(2), Ala.Code 1975, from receiving unemployment benefits. Brensinger filed a timely application for leave to appeal the hearing officer’s decision to the DIR board of appeals. The board of appeals on June 25, 2004, denied Brensinger’s application for leave to appeal.

On July 12, 2004, Brensinger amended his complaint in the Jefferson Circuit Court a second time to assert an appeal from the decision of the DIR board of appeals denying his application for leave to appeal the denial of his unemployment-compensation benefits. DIR was added to the action as a party. In January 2005, DIR moved the trial court for a summary judgment as to Brensinger’s appeal for a trial de novo from the denial of his unemployment-compensation benefits; DIR argued that Brensinger was disqualified by § 25-4-78(2), Ala.Code 1975, from receiving unemployment-compensation benefits because he had abandoned his job with Buffalo Rock. DIR submitted in support of its summary-judgment motion a copy of the decision of the hearing officer denying Brensinger’s unemployment-compensation claim.

Brensinger did not respond to the summary-judgment motion, and the trial court did not rule on the motion. Rather, Bren-singer and DIR jointly submitted a proposed order to the trial court on March 28, 2005. The trial court entered the proposed order on that date; that order reads as follows:

“This case came before the Court on representations from the attorneys for the parties, Cecil Duffee for [Brensinger], and Frank D. Marsh for the Defendant, Director, Department of Industrial Relations.
“Accordingly, the Court determines that Count Thirty-Two (Unemployment Compensation Appeal) of the Second Amended Complaint is due to be dismissed as stipulated by the above parties with each party to bear their own costs, and the Court hereby rules and decrees that neither the dismissal of said Count Thirty-Two nor any prior determination of or concerning the underlying unemployment compensation claim or claims shall have any res judi-cata or collateral estoppel effect on any other litigation or claims in this action between [Brensinger] and his former employer, Buffalo Rock Company. Further, this dismissal shall be pro tanto and shall not in any matter affect any other count, claim, or party in this action.”

Following the entry of the above order by the trial court, Buffalo Rock amended its answer to assert the affirmative defenses of res judicata and/or collateral estop-pel. Buffalo Rock also moved the trial court to alter, amend, or vacate its order holding that the dismissal of Brensinger’s unemployment-compensation claim can have no res judicata or collateral-estoppel effect on any other claims. Relying on Wal-Mart Stores, Inc. v. Smithemian, 743 So.2d 442 (Ala.1999), and Wal-Mart Stores, Inc. v. Hepp, 882 So.2d 329 (Ala.2003), Buffalo Rock argued that Brensinger’s voluntary dismissal of his appeal from the hearing officer’s decision in his unemployment-compensation claim cannot preclude it from asserting the affirmative defense of collateral estoppel to Brensinger’s retaliatory-discharge claim.

DIR responded to Buffalo Rock’s motion to alter, amend, or vacate, arguing that because “it was made abundantly clear to all parties by the Court that the unemployment compensation case would be considered after the retaliatory discharge case was resolved, no harm would occur to the former employer, Buffalo Rock, by the terms and conditions of the dismissal herein.” DIR also argued that because of the way the claims are now postured, no useful purpose would be served by continuing to litigate the unemployment-compensation claim; that Buffalo Rock would not be charged for “experience-rating” purposes on Brensinger’s unemployment-compensation claim; that the official DIR records would reflect that Brensinger was disqualified from receiving unemployment-compensation benefits based on his separation from employment with Buffalo Rock; and that it was in the best interest of all of the parties to dispose of the unemployment-compensation claim under the terms of the trial court’s March 28, 2005, order.

Brensinger responded to Buffalo Rock’s motion, arguing that pursuant to § 25-4-94, Ala.Code 1975, DIR has the authority to “affirm, modify, or set aside” any decision it has made before a decision of an appeals tribunal becomes final and that because Brensinger’s unemployment-compensation appeal was dismissed before it was decided, there is no final judgment as to the unemployment-compensation claim. Therefore, Brensinger argued, his unemployment-compensation claim has not been actually litigated, thus precluding the application of the doctrine of collateral estop-pel. The trial court entered an order on April 15, 2005, denying Buffalo Rock’s motion to alter, amend, or vacate.

This Court has stated:

“Mandamus is an extraordinary remedy and will be granted only where 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 Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). A trial court’s disallowance of a party’s affirmative defense is reviewable by a petition for a writ of mandamus. See Ex parte Neely Truck Line, Inc., 588 So.2d 484 (Ala.Civ.App.1991).

“In order for the doctrine of collateral estoppel to apply to an issue raised in an administrative proceeding, the following elements must be present:
“ ‘ “ ‘(1) there is identity of the parties or their privies; (2) there is identity of issues; (3) the parties had an adequate opportunity to litigate the issues in the administrative proceeding; (4) the issues to be estopped were actually litigated and determined in the administrative proceeding; and (5) the findings on the issues to be estopped were necessary to the administrative decision.’ ” ’ ”

Smitherman, 743 So.2d at 445 (quoting Ex parte Smith, 683 So.2d 431, 433 (Ala.1996), quoting in turn Ex parte Shelby Med. Ctr., Inc., 564 So.2d 63, 68 (Ala.1990)).

It is clear that the doctrine of collateral estoppel may be raised as a defense to a retaliatory-discharge claim to bar the relitigation of an issue raised and decided in an unemployment-compensation hearing. See Smitherman, supra, and Hepp, supra. The issue presented by this petition is whether the voluntary dismissal of Brensinger’s appeal to the circuit court of DIR’s decision on his unemployment-compensation claim prevents Buffalo Rock from establishing the fourth element of the doctrine of collateral estoppel as applied to a decision of an administrative agency— the actual litigation and determination of the issue to be estopped — thereby precluding Buffalo Rock from asserting collateral estoppel as a defense to Brensinger’s retaliatory-discharge claim.

Brensinger again argues that DIR has the authority, pursuant to § 25-4-94, to affirm, modify, or set aside any of its decisions at any time before an appeals tribunal enters a final decision. Therefore, Brensinger contends, because the appeal of his unemployment-compensation case to the circuit court was dismissed, the judgment denying his unemployment-compensation claim is not final, and, therefore, the requirement that an issue be actually litigated cannot be met for the purposes of a collateral-estoppel defense. We disagree.

Section 25-4-94(d), Ala.Code 1975, provides that in the absence of an appeal, any decision of the board of appeals of DIR becomes final 10 days after notification of the decision is mailed to the parties. Section 25^1-95 provides that a party may, within 30 days after the decision of the board of appeals has become final, seek judicial review of the decision by filing a notice of appeal in the circuit court of the county of the residence of the claimant. Here, Brensinger appealed to the circuit court after the board of appeals denied his application seeking leave to appeal the decision of the hearing officer that had affirmed the denial of his unemployment-compensation claim. On March 28, 2005, the trial court, based upon the stipulations of Brensinger and DIR, entered a proposed order dismissing Bren-singer’s appeal and declaring that the dismissal of that appeal shall not have any res judicata or collateral-estoppel effect on any pending litigation between Brensinger and Buffalo Rock. Because the trial court’s order did not specify otherwise, the dismissal of Brensinger’s appeal was without prejudice. Rule 41(a), Ala. R. Civ. P. However, because the time to appeal the denial of unemployment benefits has long since run, the dismissal of Brensinger’s appeal is effectively with prejudice. See Jones v. Phillips, 553 So.2d 106 (Ala.1989)(agreement to dismiss personal-injury claim without prejudice precluded the filing of a new claim when plaintiff failed to present evidence indicating that agreement included waiver of the statute-of-limitations defense). Thus, the last determination regarding the disputed issue of why Brensinger was discharged from his employment with Buffalo Rock is found in the opinion of the hearing officer for the hearings and appeals division. “ ‘The rule which forbids the reopening of a matter once judicially determined by competent authority applies as well to the judicial and quasi-judicial acts of public, executive, or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers.’ ” Limbaugh v. Board of Managers, City of Birmingham Ret. & Relief Sys., 628 So.2d 623, 624 (Ala.Civ.App.1993) (quoting State v. Brooks, 255 Ala. 689, 694, 53 So.2d 329, 333 (1951)). Therefore, the decision of the hearing officer has become a final decision by operation of law and represents a judicial determination sufficient to preclude the issue from further determination.

Accordingly, we conclude that Brensinger’s voluntary dismissal of his appeal in his unemployment-compensation action does not prevent Buffalo Rock from establishing the fourth element of the doctrine of collateral estoppel as applied to a decision of an administrative agency — the actual litigation and determination in the administrative proceeding of the issue to be es-topped — and that Buffalo Rock is entitled to assert the doctrine of collateral estoppel as a defense to Brensinger’s retaliatory-discharge claim.

PETITION GRANTED; WRIT ISSUED.

NABERS, C.J., and SEE, HARWOOD, and STUART, JJ., concur.

      . Because Brensinger's application was denied, he had the right to appeal the hearing officer's decision to the circuit court for a trial de novo. § 25~4-94(b) and § 25-4-95, Ala.Code 1975.

      . The trial court’s order precludes Buffalo Rock from asserting the defense of collateral estoppel. The trial court has not determined that Buffalo Rock has failed to prove the defense of collateral estoppel. Accordingly, we address only the narrow issue presented and do not make a determination as to whether Buffalo Rock has successfully established the remaining elements of the defense of collateral estoppel.

      . Once Brensinger perfected his appeal to the circuit court, the Alabama Rules of Civil Procedure became applicable. Rule 81(a), Ala. R. Civ. P.; Ex parte General Motors Corp., 800 So.2d 159 (Ala.2000)


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    William Eugene SCHIESZ, Jr. v. Catherine M. SCHIESZ.
    2041024.
    Court of Civil Appeals of Alabama.
    May 5, 2006.

      Gary L. Jester of Jester & Jenkins, Florence, for appellant.
    Terry L. Mock, Tuscumbia, for appellee.
   On Application for Rehearing

THOMPSON, Judge.

The opinion of February 24, 2006, is withdrawn, and the following opinion is substituted therefor.

William Eugene Schiesz, Jr. (“the husband”), and Catherine M. Schiesz (“the wife”) were divorced by a September 26, 2001, judgment of the trial court; that judgment incorporated an agreement reached by the parties.

On January 22, 2002, the husband filed a petition to modify his child-support and alimony obligations; he also sought to have the wife held in contempt with regard to matters not relevant to the issues on appeal. The husband also sought to “stay” his child-support and alimony obligations. On March 22, 2002, the wife filed a coun-terpetition, seeking to have the husband held in contempt for his failure to pay child support and alimony; she later amended that petition to seek, among other things, an increase in the husband’s child-support obligation.

Judge Larry Mack Smith received ore tenus evidence on May 21, 2003, and June 16, 2003. On January 14, 2005, Judge Smith entered a judgment based on his receipt of that ore tenus evidence and on “updated financial information from both parties ... and the State of Alabama Child Support Enforcement Division Court Order Payment Summary.” In that January 14, 2005, judgment, Judge Smith, among other things, granted the husband a temporary modification of his child-support and alimony obligations for the period between February 1, 2002, and December 31, 2002. Judge Smith also increased the husband’s child-support and alimony obligations effective January 1, 2003. Judge Smith concluded that the husband had overpaid his “support” obligations and ordered that that overpayment be offset against future alimony amounts owed to the wife. After the entry of the January 14, 2005, judgment, Judge Smith left office. The wife subsequently filed a post-judgment motion, which was assigned to a new trial judge, Judge Jimmy Sandlin.

On May 9, 2005, the parties filed, pursuant to Rule 59.1, Ala. R. Civ. P., an agreement to extend the time in which Judge Sandlin could rule on the wife’s post-judgment motion to June 14, 2005; on June 14, 2005, the parties filed a second agreement pursuant to Rule 59.1, agreeing to again extend the time in which Judge Sandlin could rule on the wife’s motion. On July 12, 2005, Judge Sandlin entered an order setting aside the temporary reduction in the husband’s child-support and alimony obligations and reaffirming the trial court’s modification of those obligations effective January 1, 2003. As a result, Judge Sandlin concluded that the husband owed a support arrearage, including unpaid counseling fees, totaling $12,024.25; Judge Sandlin ordered the husband to repay that arrearage at a rate of $500 per month. The husband timely appealed.

The record indicates the following facts pertinent to this appeal. At the time of the parties’ September 26, 2001, divorce, the husband was employed at Morgan Keegan. It is undisputed that at the time of the parties’ divorce the husband was earning a salary from Morgan Keegan but that on December 31, 2001, he was to stop receiving a salary and begin being paid based solely on commissions from his production as a stockbroker. The husband admitted that at the time he entered into the agreement upon which the divorce judgment was based he knew that his guaranteed salary was to cease at the end of 2001. In response to questions regarding whether his supervisor had discussed with him the fact that he had skipped sales meetings, had failed to service clients, and was not sufficiently productive, the husband repeatedly testified that he could not recall any such conversations. The wife testified that at the time the parties entered into the agreement upon which the divorce judgment is based the husband expected his income to decrease at the time his salary terminated and he began to be paid based on his commissions.

The husband testified repeatedly at the hearing in this matter that at the time of the divorce he was receiving a gross monthly salary of $10,000. However, the September 26, 2001, divorce judgment states that the husband’s gross monthly income at the time of the divorce was $9,000. At the time of the parties’ divorce, the wife earned $1,761 per month.

The husband testified that he received his last salary payment, representing his salary for December 2001, from Morgan Keegan in January 2002. The husband filed his petition for a modification on January 22, 2002; in that petition, the husband alleged he had suffered a “significant reduction” in his income.

The husband had remarried at the time he filed his January 22, 2002, petition for a modification. At that time, the husband had entered into a partnership agreement with his new wife (“Sandy”), who was also employed as a stockbroker with Morgan Keegan. Initially, the husband and Sandy were to split the revenues of their joint sales on a 50-50 basis, but they modified that agreement within a few days to provide that the husband would receive 40% of the revenue generated from that partnership. The husband presented evidence indicating that approximately 90% of the commissions or revenue generated by the partnership resulted from Sandy’s clients and that he had not successfully built a strong client base of his own. The husband also testified that his income from Morgan Keegan after January 2002 would have been much lower had he not entered into the partnership agreement with Sandy.

In spite of the partnership with Sandy, the husband’s income between February 2002 and September 2002 was greatly diminished from what he had earned while on salary. The husband’s income based on commissions for that period was as follows: $2,172 in February 2002; $2,618.39 in March 2002; $497.94 in April 2002; $2,819.77 in May 2002; $2,712.87 in June 2002; $1,778.54 in July 2002; and $600 in August 2002. In July or August 2002, the husband exercised a stock option and received approximately $17,500 in proceeds. Morgan Keegan terminated the husband’s employment on September 9, 2002.

The husband testified that he was unemployed from September 9, 2002, until November 2002, when he was hired by Sun-Trust in Florida. The husband worked for SunTrust for one month, during which time he earned a salary of $5,000. In addition, the husband received a one-time payment of $10,000 from SunTrust. The husband testified that the $10,000 was a “relocation bonus” to pay for his expenses for the move to Florida. In December 2002, the husband left his employment with SunTrust in order to accept employment with First Tennessee Brokerage (“First Tennessee”).

The husband testified that he earns approximately $10,750 per month, including salary and commissions, from his employment with First Tennessee. In addition, the husband received a net amount of $25,000 from First Tennessee in January 2003. The husband testified that the $25,000 was to pay for his moving expenses. An exhibit submitted into evidence at the hearing in this matter indicates that First Tennessee characterized the $25,000 as a “sign-on bonus.” The husband insisted that he spent the entirety of both the $10,000 bonus and the $25,000 bonus on moving-related expenses. The husband claimed only $4,200 in moving-related expenses on his 2002 federal income-tax return.

In support of his claim that he spent exactly $25,000 on moving-related expenses in accepting his employment at First Tennessee, the husband submitted into evidence an exhibit in which he claimed to have spent $4,250 to rent one apartment from December 2002 to April 30, 2003, and another $2,065 to rent another apartment from March 2003 to the end of April 2003. The husband claimed that he had paid more than $2,000 in deposits for the two apartments and approximately $350 additional moving expenses for the move between the two apartments. The husband claimed, among other things, $5,800 in “packing expenses,” which he admitted he considered to have been paid to himself for doing some of the work related to the moves, and $3,849.01 for “miscellaneous relocation expenses” for which he could not account.

After the entry of the September 26, 2001, divorce judgment, the husband made child-support payments for the months of October and November 2001; those payments were late. The husband did not pay child support in December 2001, but he made two child-support payments in January 2002. After he filed his January 22, 2002, petition for a modification and his motion . for a stay of his support obligations, the husband failed to pay child support for several months.

During the pendency of this action, the wife filed a third-party claim against Morgan Keegan, the husband’s former employer, alleging, among other things, that Morgan Keegan had failed to withhold child support from the husband’s earnings as required by an October 2001 withholding order. It is undisputed that Morgan Kee-gan failed to withhold child support from the husband’s earnings for the months of February, March, and April 2002, months in which the husband failed to pay child support or alimony. After the wife notified Morgan Keegan of the husband’s failure to pay his child-support obligation, Morgan Keegan began deducting child support from the husband’s earnings; those deductions continued through July 2002. Although he did not make any contribution toward the children’s support in March or April 2002, the husband withdrew from his money-market account a total of $2,175.16 in those months.

In August 2002, there was no deduction for child support, apparently because the husband earned only $600 from Morgan Keegan that month. It is undisputed, however, that in June 2002 the husband received $17,496.75 from his exercise of the stock option; that money was deposited into his money-market account. The husband immediately withdrew $12,800 from that account; he withdrew an additional $500 in July 2002. The husband did not present any evidence regarding how he spent those amounts. In August 2002, the husband withdrew the remaining $4,199 from the money-market account to meet his expenses; however, he made no contribution toward the children’s support for that month.

After he was terminated from his employment at Morgan Keegan in September 2002, the husband paid $243.72 in child support in October 2002. Although the husband became employed in November 2002, he did not pay child support for November or December 2002. Between November 2002 and January 2003, the husband received a total of $35,000 in lump-sum payments or bonuses from his employers. The husband paid $1,860.91 in child support in January 2003 and $854.30 in February 2003.

In the spring of 2003, in response to a request by the wife, Judge Smith entered an order requiring First Tennessee to withhold 50% of the husband’s earnings “to be credited to the [husband’s] alimony[] and child-support obligations.” On June 17, 2004, Judge Smith modified that order and required the husband’s employer to withhold from the husband’s earnings $2,150 for child support and $1,725 for his alimony obligation. The husband maintained at the hearing in this matter that as a result of those two orders he had repaid any past arrearages and had overpaid his support obligations; that argument was based on the assumption that the court would award a temporary downward modification, retroactive to the date of the filing of the husband’s January 22, 2002, petition, of both of the husband’s support obligations.

The husband paid three of the alimony payments due in 2001, and he made only two $1,199 alimony payments in 2002. It appears that the husband’s payments of alimony resumed in 2003 pursuant to the two withholding orders discussed above. We note that the husband admitted that on his 2002 federal income-tax return he had claimed to have made $6,800 in alimony payments in 2002 and that he also overstated his mortgage-interest deduction on that tax return.

The record indicates that the husband “maxed out” his monthly contributions to his own 401(k) retirement account even in months when he made no contribution toward either of his support obligations. The husband has also failed to reimburse the wife for the children’s medical expenses not covered by insurance. The husband has participated in a medical-reimbursement plan, and he admitted that on more than one occasion, although the wife had paid for the children’s medical expenses, he had deposited the checks for reimbursement of those expenses into his bank account and kept the money. The husband testified that he “did not know” whether he kept the money from the medical-reimbursement checks during months in which he had failed to contribute to the children’s support.

The wife stated that her monthly gross income is $2,093.75. She testified that her monthly living expenses totaled $3,752 and that the children’s monthly expenses totaled $2,237. We note that the wife included in her monthly living expenses a monthly credit-card-debt payment in the amount of $1,000 that should be eliminated or greatly reduced by the resolution of one of her claims seeking to enforce certain provisions of the divorce judgment. The wife testified that during the pendency of this matter she has had to borrow money from her mother in order to meet the living expenses for the children and her.

The January 14, 2005, judgment entered by Judge Smith reduced the husband’s child-support obligation for the period February 1, 2002, through December 31, 2002, to $775 per month. The January 14, 2005, judgment also reduced the husband’s alimony obligation to $372 per month for that same period. The January 14, 2005, judgment modified the husband’s child-support and alimony obligations beginning January 1, 2003, to $2,150 and $1,725, respectively. Based on that temporary modification, Judge Smith concluded that the husband had overpaid his support obligations and was entitled to an offset of that amount against his alimony obligation.

Judge Sandlin, in entering that part of his July 12, 2005, judgment in which he determined that the husband was not due any reduction in his support obligations for the period between February 1, 2002, and December 31, 2002, made the following factual findings:

“a. The [husband] was aware of his potential change in income at the time he agreed to the support obligations;
“b. The [husband] had the ability to earn at [a] higher rate of income than he actually received during the period in question;
“c. The [husband] manipulated his income by decreasing his interest in the business partnership he formed with his new wife;
“d. The [husband] received stock options and bonuses during this period in question which offset much of his ‘loss of income.’ ”

In the July 12, 2005, judgment, Judge Sandlin found the portion of the earlier judgment that modified the husband’s support obligations effective January 1, 2003, to be reasonable, and he refused to alter that modification. Based on his determination that there should be no temporary modification of the husband’s support obligations, Judge Sandlin determined that the husband owed a child-support arrear-age in the amount of $574.25 and an alimony arrearage in the amount of $7,250, plus interest; Judge Sandlin ordered the husband, in addition to his support obligations, to make monthly payments of $500 toward the repayment of the arrearages.

On appeal, the husband purports to raise five separate issues, two of which can be summarized as challenging that portion of the July 12, 2005, judgment that vacated the temporary modification of the husband’s support obligations in the January 14, 2005, judgment. The husband contends that that portion of the July 12, 2005, judgment is not supported by the evidence and that the temporary modification of his support obligations contained in the January 14, 2005, judgment should be reinstated. The husband argues that between February 1, 2002, and December 31, 2002, he had no ability to pay the level of support required by the parties’ divorce judgment.

In making his argument on this issue, the husband contends that Judge Sandlin’s factual findings in his July 12, 2005, judgment are not supported by the evidence. We disagree. Even the husband acknowledged that he was aware at the time of the parties’ divorce that his income was likely to change after December 31, 2001. The wife testified that the husband anticipated that his income would decrease. The husband’s supervisor at Morgan Keegan testified that he had had discussions with the husband regarding, among other things, the husband’s lack of productivity and his concerns regarding the husband’s income when it was to be based solely on commissions. The husband stated that he did not recall having those discussions with his supervisor.

The evidence also supports Judge Sand-lin’s determination that the husband had the potential to earn more income than he did in 2002. It is clear from the evidence pertaining to the husband’s income both before and after 2002 that the husband had such earning potential.

The evidence also supports Judge Sand-lin’s conclusion that the husband manipulated his income from his partnership with his new wife. The husband asserts that his income would have been lower had he not entered into the partnership agreement with his new wife. However, it appears that the husband reduced his percentage share of the partnership at approximately the same time he filed his petition seeking to reduce his child-support and alimony obligations. Although the husband disputes that he attempted to manipulate his income, it does not appear that Judge Sandlin was plainly or palpably wrong in reaching his determination. See Sellers v. Sellers, 893 So.2d 456 (Ala.Civ.App.2004). Further, the husband’s credibility can reasonably be called into question considering much of the other evidence contained in the record and detailed in this opinion.

The evidence in the record on appeal also supports Judge Sandlin’s conclusion that the husband received more than $17,000 in stock options and $35,000 in lump-sum payments or bonuses from his employers and that those amounts offset much the husband’s loss of income. The husband failed to explain how he spent $12,800 of the money from his exercise of the stock options; the remaining amount, which was approximately $5,000, was spent by the husband to meet expenses in a month when he made no contribution toward his child-support obligation. Further, the evidence supports a conclusion by Judge Sandlin that the husband’s explanation of how he spent the $25,000 signing bonus was not credible.

The husband cites Corsino v. Corsino, 904 So.2d 1261 (Ala.Civ.App.2004), in support of his assertion that Judge Sandlin erred in requiring him to pay a level of support that he maintains he could not afford. In Corsino v. Corsino, supra, the husband agreed at the time of the parties’ divorce to make certain child-support, alimony, and private-school-tuition payments. The husband in that case testified that he had expected his income after the divorce to increase due to a number of factors but that for various reasons his income had not increased to the level he had anticipated. Instead, the husband’s income remained the same, and the combined support obligations exceeded his ability to pay. This court reversed the trial court’s refusal to modify the husband’s support obligations, concluding that “ ‘[t]he law will not require the doing of a vain or useless thing,’ ” i.e., the payment of support obligations that the husband could not afford. Corsino v. Corsino, 904 So.2d at 1265 (quoting Men-ton v. Menton, 405 So.2d 940, 942 (Ala.Civ.App.1981)).

The husband in this case refers in his brief on appeal to his “financial hopes,” apparently referring to hopes that he could meet his support obligations based on his income from his commissions from Morgan Keegan. However, there is no evidence in the record indicating that at the time he entered into the agreement upon which the trial court based its divorce judgment the husband expected his income to increase or even to remain the same. Although the husband contends that he could not meet his support obligations during much of 2002, the trial court clearly concluded otherwise. It appears that the trial court imputed income to the husband when it refused to modify his child-support or alimony obligations.

A court may impute income to a parent upon a finding that the parent is voluntarily unemployed or underemployed. Rule 32(B)(5), Ala. R. Jud. Admin. A trial court does not have to make a specific finding that the parent is voluntarily unemployed or underemployed; such a finding may be implicit in the trial court’s judgment. Berryhill v. Reeves, 705 So.2d 505, 507 (Ala.Civ.App.1997); see also Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992) (the trial court is presumed to have made those factual findings necessary to support its judgment). In this case, however, we conclude that Judge Sandlin, although he did not specifically use the term “voluntarily underemployed,” made an explicit, rather than an implicit, finding that the husband was voluntarily underemployed. Judge Sandlin specifically determined that the husband had the potential to earn more income in 2002 than he actually received. We also conclude that that determination is supported by the evidence contained in the record on appeal, in particular the evidence indicating that within a short time of leaving his employment with Morgan Keegan the husband received two other jobs that paid more than the rate he received when he was being paid on a commission basis at Morgan Keegan. Based on the foregoing, we cannot say that the husband has demonstrated that Judge Sandlin erred in refusing to reduce his child-support or alimony obligations during the period between February 1, 2002, and December 31, 2002.

The husband also argues that both the January 14, 2005, and the July 12, 2005, judgments are unsupported by. the evidence with regard to the provisions that increase his child-support and alimony obligations effective January 1, 2003. In support of his argument, the husband cites authority only in support of general propositions of law; he does not attempt to apply that law to the facts of this case. Therefore, his argument comes dangerously close to failing to comply with the requirements of Rule 28, Ala. R.App. P. Out of an abundance of caution, however, we will address the husband’s argument.

“Modification of child support is a matter within the trial court’s discretion and the trial court’s ruling on that matter will not be disturbed on appeal unless there is an abuse of discretion. Bass v. Bass, 475 So.2d 1196, 1198 (Ala.Civ.App.1985). Where evidence is presented ore tenus, the trial court’s judgment based on that evidence is presumed correct, particularly in matters concerning child support, and it will be reversed only upon a showing that the trial court abused its discretion or that its determination is plainly and palpably wrong. Wilson v. Hall, 628 So.2d 728 (Ala.Civ.App.1993).”

Puckett v. Summerford, 706 So.2d 1257, 1257 (Ala.Civ.App.1997).

The husband argues only that the application of the Rule 32, Ala. R. Jud. Admin., child-support guidelines demonstrates that there is less than a 10% change between the previous child-support award and the amount the husband contends is due under those guidelines given the parties’ current income levels. Therefore, according to the husband, a modification of child support is not warranted. The husband is not correct that child support may not be modified absent a 10% change in the support-paying parent’s child-support obligation. See Beavers v. Beavers, 717 So.2d 373, 376 (Ala.Civ.App.1997) (“The trial court may modify a support obligation where the 10 per cent variation is not present, but where there has been a material change in the parties’ circumstances.”).

Further, in this case, child support cannot be calculated by the application of the Rule 32 child-support-guidelines schedule. The husband’s monthly income is $10,750 and the wife’s monthly income is $2,093.75; thus, the parties’ combined income exceeds the $10,000 per month uppermost limit of the child-support-guidelines schedule. When the parties’ combined monthly gross incomes exceeds $10,000, the trial court may use its discretion in establishing a child-support obligation. Rule 32(C)(1), Ala. R. Jud. Admin.; Dyas v. Dyas, 683 So.2d 971, 972 (Ala.Civ.App.1995) (opinion on rehearing). “This court has held, however, that a trial court’s discretion is not unbridled and that the amount of child support awarded must relate to the reasonable and necessary needs of the children as well as to the ability of the obligor to pay for those needs.” Dyas v. Dyas, 683 So.2d at 973. The husband has not argued to this court that the amount of the child-support award is excessive considering the reasonable and necessary support needs of the children or that he cannot, considering his current level of income, afford the child-support obligation imposed by the trial court effective January 1, 2003. We decline to make those arguments on behalf of the husband. It is not the function of this court to advocate a position on behalf of an appellant or to create a legal argument for the appellant. McLemore v. Fleming, 604 So.2d 353 (Ala.1992); Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992).

Similarly, we find the husband’s argument that Judge Smith and Judge Sandlin erred in modifying his alimony obligation to be unpersuasive.

“ ‘ “It is well established in Alabama that the modification of an alimony provision based upon changed circumstances is a matter that rests within the [trial] court’s sound discretion.” ’ Stinson v. Stinson, 729 So.2d 864, 868 (Ala.Civ.App.1998) (quoting Ex parte Millard, 683 So.2d 1002, 1003 (Ala.1996)).
“ ‘The modification of periodic alimony is a matter within the discretion of the trial court, and on appeal its judgment on that matter is presumed correct.... The trial court may modify an award of periodic alimony if the petitioner proves that a material change of circumstances has occurred since the last award was made. The trial court may consider several factors, including the earning capacity of each spouse, the recipient’s needs and the payor’s ability to meet those needs, and the estate of each spouse.’
“Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala.Civ.App.1995) (citations omitted). Furthermore, this court is not permitted to reweigh the evidence on appeal or to substitute its judgment for that of the trial court. See Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996).”

Sellers v. Sellers, 893 So.2d at 461.

With regard to alimony, the husband argues in his brief on appeal only that his alimony obligation should have remained the same percentage of his current income as the previous alimony award was to his income at the time of the parties’ divorce. He briefly, without any specific argument, contends that any modification of the alimony obligation is not supported by the evidence. However, the trial court’s decision regarding the modification of alimony must be afforded a presumption of correctness. Sellers v. Sellers, supra. We cannot discern from the husband’s argument how he contends Judge Smith and Judge Sandlin abused that discretion. Based on our standard of review and the arguments contained in the husband’s brief on appeal, we cannot say that the husband has demonstrated that the trial judges erred in modifying his alimony obligation.

The husband’s argument that he is entitled to a credit against his child-support or alimony obligations is based on his contention that Judge Sandlin erred in reaching his July 12, 2005, judgment; because we have rejected that contention, we need not reach this issue. The husband does not contend that, if we should find Judge Sandlin’s July 12, 2005, judgment is supported by the evidence, which we do, the trial court erred in its calculation of his support arrearages.

The husband also lists in the “statement of the issues” portion of his brief an argument that Judge Sandlin did not have authority to set aside any portion of the January 14, 2005, judgment entered by Judge Smith because Judge Smith had heard ore tenus evidence. The husband did not object before Judge Sandlin to Judge Sandlin’s consideration of the wife’s postjudgment motion. “This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

Further, the husband fails to develop an argument with regard to this issue in his brief on appeal. The husband’s failure to object before Judge Sandlin and his failure to argue this issue before this court precludes this court’s consideration of the issue. Rule 28(a)(10), Ala. R.App. P.; Andrews v. Merritt Oil Co., supra.

The wife’s request for an attorney fee on appeal is granted in the amount of $2,000.

APPLICATION GRANTED; OPINION OF FEBRUARY 24, 2006, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

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

      . On original submission, the May 9, 2005, agreement filed pursuant to Rule 59.1, Ala. R. Civ. P., was omitted from the record on appeal. This court asked the parties to brief the issue whether the appeal was timely filed. The parties did so, but neither party sought to supplement the record on appeal to include the May 9, 2005, agreement. Therefore, on original submission, this court dismissed the appeal as untimely filed because only the June 14, 2005, agreement was contained in the record on appeal. See Moore v. Moore, 910 So.2d 137, 140 (Ala.Civ.App.2004) (holding that "any extension of the 90-day period provided in Rule 59.1[, Ala. R. Civ. P.,] must be of record before the 90-day period expires, because any purported extension after the 90 days is a nullity’ ” (emphasis omitted)). After the release of this court's opinion on original submission, the wife filed a motion in the trial court seeking to supplement the record to include the May 9, 2005, agreement; the husband opposed that motion. On March 8, 2006, the trial court granted the wife's motion to supplement the record. "We have decided to allow the supplement to the record even at this point because it appears to be within the purpose of Rule 10(f)[, Ala. R.App. P.,] to do so.” Walker v. Eubanks, 424 So.2d 631, 634 (Ala.Civ.App.1982) (opinion on rehearing). The wife, relying on the record as supplemented pursuant to the March 8, 2006, order, filed an application for rehearing in this court; the husband opposed that application.

      . See note 1.

      . We note that the wife later recovered from Morgan Keegan $3,453.34 for child support from the husband for the months of February, March, and April 2002. A representative for Morgan Keegan explained that Morgan Kee-gan could withhold only up to 50% of the husband's income and that 50% of the husband’s income for those months would not satisfy the husband's full child-support obligation for those months. The $3,453.34 was the maximum amount Morgan Keegan could have withheld from the husband's income during the three months. Judge Smith ordered that the husband receive a credit against his child-support obligation for that $3,453.34.

      . This court has not been asked to review whether a court may issue a withholding order with regard to the payment of an alimony obligation.

      . See note 4.


author: THOMPSON, Judge. MURDOCK, Judge,

text:
    Ex parte W.H., Jr., and K.H. (In the matter of T.T.O., also known as T.T.H., a minor child). N.O. v. J.R.O. and C.W.O.
    2050026 and 2050040.
    Court of Civil Appeals of Alabama.
    May 5, 2006.

      J. Bary Abston, Huntsville, for petitioners W.H., Jr., and K.H.
    Reta A. McKannan, Huntsville, for appellant N.O.
    Tiffan Miller Taylor, Huntsville, for ap-pellees J.R.O. and C.W.O.
    Joan-Marie Kettell, Huntsville, for C.O.
   THOMPSON, Judge.

In April 2005, N.O. (“the mother”) and C.O. (“the father”) (collectively “the parents”) were arrested on burglary charges and incarcerated. At that time, the parents and T.T.O., also known as T.T.H. (“the child”), were residing in the home of J.R.O. and C.W.O., the father’s parents and the child’s paternal grandparents (collectively “the paternal grandparents”). The child’s date of birth is October 11, 2003.

On April 19, 2005, apparently while the parents remained incarcerated, W.H., Jr., the child’s maternal grandfather, and his wife, K.H., the child’s maternal stepgrand-mother (collectively “the maternal grandparents”), filed in the juvenile court a petition seeking custody of the child as well as pendente lite custody of the child. The juvenile court assigned their petition case no. JU-05-1584.01. In their April 19, 2005, petition, the maternal grandparents asserted that the child was a dependent child within the meaning of § 12-15-1(10), Ala. Code 1975. They alleged, among other things, that the parents were addicted to drugs and mind-altering substances; that repeated efforts at rehabilitating the parents had failed; that the parents had lost custody of their older child in a previous juvenile proceeding; and that, due to the parents’ drug-related problems, the parents were unable to safely care for and parent the child. The maternal grandparents asserted that they were fit and proper persons to have custody of the child and that the child’s best interests would be served by granting them custody of the child. The maternal grandparents also submitted affidavits of the child’s maternal great-grandfather, the maternal grandfather, and one of the mother’s cousins; those affidavits set forth details regarding the parents’ drug abuse. The maternal grandparents also submitted an “Alabama Uniform Incident/Offense Report Supplement Report” of the Madison County Sheriffs Department regarding the parents’ arrest for stealing tools from the maternal grandparents. In his affidavit, the maternal grandfather stated that “I am pressing charges against [the parents] because this is the only way that I know to make them get some help.”

On April 27, 2005, the juvenile court entered an order granting the maternal grandparents pendente lite custody of the child. In that order, the juvenile court also appointed a guardian ad litem for the child.

On April 26, 2005, the day before the juvenile court entered its April 27, 2005, pendente lite custody order, the parents and the paternal grandparents had filed in the juvenile court a sworn pleading styled “joint stipulation of the [parents and the paternal grandparents]” in which the parents and the paternal grandparents agreed to transfer custody of the child to the paternal grandparents. The parents and the paternal grandparents requested that the juvenile court adopt as a custody order that “joint stipulation.” The juvenile court assigned that “joint stipulation” case no. JU-05-1596.01; that “joint stipulation” stated, in relevant part:

“This agreement, made and entered into on the 26th day of April, 2005, by and between [the parents] and [the paternal grandparents].
“WHEREAS, the natural parents of the minor child ... are currently incarcerated in the Madison County Jail and are charged with a felony. Prior to said incarceration the [parents] and the minor child ... had resided with the [paternal grandparents] for some time. The [parents] have suffered with certain drug-related problems and the paternal grandparents have provided support for the [parents] and the ... minor child and
“WHEREAS, the parties have reached this agreement with regard to custody of the minor child ... and desire that the Court approve their Agreement and incorporate the parties’ Agreement into a final order and decree of this Court; and
“NOW THEREFORE, in consideration of the promises, and of the mutual covenants herein provided, it is hereby agreed by and between the parties as follows:
“1. The parties stipulate that the minor child is [a] dependent child, as defined in section 12-15-1(10) of the Code of Alabama, 1975. The [paternal grandparents] shall have the legal and physical custody of the minor child ....
“2. Upon the [parents’] release from jail, they shall have visitation with the child at all times and places as is agreed upon by the parties. The parties agree that the visitation shall be exercised in a suitable location for the minor child and that all persons present shall be free from alcohol or any mind-altering substance.
“3. At the time of execution of this Agreement, neither of the [parents] is steadily employed. The parties stipulate and agree that the [parents] are currently experiencing substantial financial distress, and the parties further agree that a child-support obligation should be deferred at this time. Should the [parents] be released from jail, they shall contribute to the costs of the minor child as they are financially able. The parties agree that said child support is a deviation from Rule 32 Guideline Support and that said deviation is warranted at this time.
“4. The parties agree that this Agreement constitutes the entire understanding between the parties and supersedes all and any other prior agreements, if any, heretofore made between them other than those herein expressly set forth. The parties further acknowledge that each has signed this agreement freely and voluntarily and after having had an opportunity to consult with legal counsel. It is agreed between the parties that this Agreement shall be filed in the Juvenile Court of Madison County, Alabama in a dependency action there, and it is acceptable by the parties that the provisions of this Agreement, if acceptable to the Court, shall be incorporated into and made a part of a Final Order of Custody ... in that action, or in the event this Agreement is not acceptable to said Court for the purposes hereinabove set out, the same shall be and become null and void and shall not be evidence or considered as such by any Court.”

On April 29, 2005, the paternal grandparents filed a motion to set aside the April 27, 2005, pendente lite custody order. In their April 29, 2005, motion, the paternal grandparents alleged, among other things, that on April 26, 2005, the parents had “signed custody” of the child over to them, that the maternal grandparents were aware of that fact, and that the child had resided in their home for over two years. The paternal grandparents requested that the juvenile court permit the child to remain in their home where he was safe, well cared for, and well adjusted. The paternal grandparents agreed to cooperate with the guardian ad litem for the child; they also agreed not to leave the child alone with the parents pending a hearing on the matter.

Also, on April 29, 2005, the maternal grandparents filed a motion styled “Motion for Order Directing the Sheriff of Madison County to Place Minor Child in the Custody of [the Maternal Grandparents].” In their April 29, 2005, motion, the maternal grandparents alleged, among other things, that the paternal grandparents had refused to turn the child over to them after being served on April 28, 2005, with the April 27, 2005, pendente lite custody order; that the parents continued to reside in the paternal grandparents’ home; and that it was not in the best interests of the child to remain in a home with the parents because of the parents’ problems with drug addiction. The maternal grandparents also alleged that on April 29, 2005, they had discovered that the parents were attempting to transfer custody of the child to the paternal grandparents via the parents and the paternal grandparents’ “joint stipulation.” In support of their April 29, 2005, motion, the maternal grandparents attached a copy of the April 27, 2005, pen-dente lite custody order and the “joint stipulation.”

On May 4, 2005, the juvenile court held a hearing regarding case no. JU-05-1584.01 and case no. JU-05-1596.01. Although that hearing was not transcribed, the maternal grandparents, on appeal, pursuant to Rule 10(f), Ala R.App. P., properly supplemented the record with a “joint stipulation with respect to hearing of May 4, 2005,” which was signed by the maternal grandparents, the paternal grandparents, and the guardian ad litem; that stipulation stated, in relevant part:

“a. [The maternal grandparents] were personally present and were represented ... by [counsel], [The paternal grandparents] were personally present and were represented ... by [counsel]. [The parents] ... of the subject minor child were present and were not represented by counsel.... [T]he guardian ad litem for the subject minor child, was also personally present....
“b. Judge Sherrod did not take testimony at the hearing, but stated that on a pendente lite basis the paternal grandparents ... should exercise custody of the minor child pending further orders of the Court, and that the parties should attempt to work out visitation by agreement. Judge Sherrod directed that the natural parents[’] contact with the minor child should be supervised by one of the four grandparents. [The parents] ... did not object to the Court’s decision to place pendente lite custody of the minor child with the paternal grandparents at the hearing of May 4, 2005.
“c. Judge Sherrod directed that the two cases be consolidated under one case number.”

The juvenile court did not enter a written order following the May 4, 2005, hearing.

In August 2005, the maternal grandparents filed several motions seeking penden-te lite visitation with the child; those motions bore case no. JU-05-1584.01 only.

On September 27, 2005, the juvenile court entered an order in case no. JU-05-1584.01 and case no. JU-05-1596.01, stating in relevant part, as follows:

“On information and belief the above actions involve the same child. The [maternal grandparents’] Petition seeks to have the minor child declared a de-pendant child.
“The [paternal grandparents’] Petition for custody, with the consent of the biological parents, seeks a consent judgment placing custody with the paternal grandparents. The child ... IS NOT a dependant child as defined within the law.
“[The child] is a child whose biological parents seek to transfer custody to his paternal grandparents.
“This Court is unable to establish a ‘right to reasonable visitation’ for the [maternal] grandparents. The Court continues to encourage ALL grandparents to work through their differences for the best interest of the child.
“Motion for Order Directing the Sheriff of Madison County to Place Minor Child in the Custody of [the maternal grandparents] is DENIED.
“FIRST AND SECOND MOTION FOR ENTRY OF PENDENTE LITE VISITATION SCHEDULE DENIED.
“The Ex-Parte Pendente Lite Order entered by this Court April 27, 2005 is hereby set aside. ■
“The child shall remain in the home of the paternal grandparents pending further order of this Court.
“A Hearing shall be held on September 28, 2005.”

(Capitalization in original).

On September 27, 2005, the maternal grandparents filed a motion to alter, amend, or vacate the September 27, 2005, order. In their motion, the maternal grandparents asserted, among other things, that the juvenile court had erred in determining that the child was not a dependent child and that it was improper for the juvenile court to make such a determination without affording them an opportunity to present evidence. The maternal grandparents also asserted that the juvenile court should have awarded them visitation; they specifically requested that “[i]n the event that the Court awards custody to the [paternal grandparents] after hearing all of the evidence, ... the Court award them reasonable visitation.”

On September 28, 2005, the juvenile court held a hearing regarding case no. JU-05-1584.01 and case no. JU-05-1596.01. Present at the September 28, 2005, hearing were the guardian ad litem, the maternal grandparents and their counsel, and the paternal grandparents and their counsel. The father was also present; he was not represented by counsel. The mother was not present at the September 28, 2005, hearing. However, on that same day, apparently just before the hearing began, the mother filed a motion styled “motion to withdraw consent for custody order, motion to continue, and affidavit”; the mother’s sworn pleading stated, in relevant part:

“I am submitting this affidavit to the Court for the purpose of requesting the Court to allow me to withdraw a written consent that I previously signed wherein I agreed to place custody of ... [the child] with [the paternal grandparents].
“I am currently in an in-house drug treatment program. I have a serious addiction to drugs. At the time that I signed documents agreeing to place custody of my son with [the paternal grandparents], I was not thinking clearly due to my problem with drugs.
“My father, [the maternal grandfather], warned me that if I did not get myself straightened out, he would file for custody of [the child]. Later, after I did not stop using drugs, my father informed me that he was in the process of filing for custody. When [the father] and I learned that [the maternal grandparents] were filing for custody, we rushed to sign documents placing custody of our child with [the paternal grandparents]. We were trying to stop [the maternal grandparents] from getting custody of [the child]. There had never been any discussion of [the paternal grandparents] having custody of [the child] until my father indicated that he was pursuing custody of [the child].
“As I began the process of getting off of drugs, I realized that I had made a serious mistake. When I was on drugs, I perceived [the maternal grandparents] as being unhelpful and unkind to me; I now realize that they were simply refusing to tolerate or enable my addictive behavior. I now realize that [the maternal grandparents] were engaging in ‘tough love,’ by not enabling my addictive behavior, [the maternal grandparents] have always been ready to provide me with assistance, but all offers of assistance were tied to [my] getting off of drugs, and I resented this.
“I desperately want a chance to get off drugs, to get my life back on track, and to get custody of [the child]. I am asking the Court to continue the hearing in this case to give me this opportunity.
“In the event that I cannot be considered for custody of [the child], I ask the Court to place custody of [the child] with [the maternal grandparents]. I believe that [the maternal grandparents] would provide a better home for [the child] for the following reasons:
“1. I am concerned about [the paternal grandparents’] enabling of [the father’s] drug problem. [The father] has had a serious drug problem since he was in high school and his parents have done nothing to stop this. Instead, [the paternal grandparents] have provided for us, even when they knew we were using drugs and running from the police. As an example of [the paternal grandmother’s] enabling behavior toward me, [she] has allowed me to have unsupervised access to [the child] in July and August of this year, even after Judge Sherrod specifically ordered that [the father] and I not have unsupervised access to [the child]. [The paternal grandparents] took [the father, the child] and me to Mobile, Alabama, where [the paternal grandfather] was working. [The paternal grandparents and the father] would go out to work during the day, and leave me alone with [the child] all day long. I did not see anything wrong with this at the time, but now I realize that it was not appropriate. At the time that [the paternal grandparents] took [the father, the child,] and me to Mobile, Alabama, (in July and August) of this year, [the father] and I had outstanding arrest warrants against us, and [the paternal grandparents] knew this. This is an example of [the paternal grandparents’] enabling behavior.
“2. I am concerned that if [the child] is placed with the [paternal grandparents], [the child] will never have a normal relationship with his brother. The [paternal grandparents] seldom see [the child’s older brother], and they do not appear to care about him. If [the child] were placed with [the maternal grandparents], [the child] would have regular access to his brother ....
“3. I am concerned about the amount of alcohol consumed by [the paternal grandmother]. [The paternal grandmother] drinks a six pack to twelve pack of beer at one sitting, and she usually drinks this amount of beer four days out of the typical week. Alcohol is just another type of drug, and [the paternal grandmother] simply drinks too much to be an appropriate care giver for a minor child.
“4. I am concerned that [the paternal grandmother] smokes constantly around [the child] and cusses like a sail- or in his presence. I do not want [the child] to grow up in that environment.
“5. The [paternal grandparents] do not go to church, and I would like for [the child] to grow up in a family that attends church.
“At the time that I signed the documents agreeing to place custody of [the child] with the [paternal grandparents], I was on drugs, I was running from the police, and I was trying to spite [the maternal grandfather]. After entering drug rehabilitation, I now know that I was not thinking clearly. I am requesting that the Court allow me to withdraw the documents that I previously signed.
“For the reasons set forth above, I am requesting that the Court allow me to withdraw my consent to placing custody of [the child] with [the paternal grandparents], I request that the Court grant me a continuance to allow me [to] complete my drug recovery program. If the Court will not allow me the opportunity to request custody of my child after completing my drug recovery program, then I request that [the child] be placed with [the maternal grandparents].”

At the beginning of the September 28, 2005, hearing, the juvenile court advised those present that the matters before the court were the maternal grandparents’ motion to alter, amend, or vacate the juvenile court’s judgment finding that the child was not dependent and their request for visitation rights in the event custody was awarded to the paternal grandparents. The juvenile court denied the maternal grandparents’ motion without taking any evidence, stating that it did not consider the child to be a dependent child within the meaning of § 12-15-1(10). Rather, the juvenile court considered “th[e] child [to] ha[ve] been placed in capable hands by his biological parents.” The juvenile court stated that, “based on the pleading that has been accorded before this court[, the child] was placed in the care of the paternal grandparents by his biological parent[s].” The juvenile court asked the father, “I believe you heard me say that this child, based on the pleadings was placed in the care of the paternal grandparents by you and by its mother; is that correct?”; the father responded, ‘Tes, ma’am.”

Counsel for the maternal grandparents then advised the juvenile court that the mother had filed her “motion to withdraw consent for custody order, motion to continue, and affidavit” earlier that day. Counsel for the maternal grandparents requested that the juvenile court hear evidence regarding whether the child was dependent and regarding the suitability of the paternal grandparents as a placement for the child. The juvenile court then asked the father again, ‘Tou voluntarily, without any order placed this child in the care of [the paternal grandparents]?”; the father responded, ‘Tes, ma’am.” At that point, the juvenile court denied the maternal grandparents’ request to present evidence and stated that it considered the matter to be a custody battle between two sets of grandparents and that it was “without ... legal authority to [decide the issue of] grandparent visitation.” After the juvenile court made its ruling, the guardian ad litem opined that both sets of grandparents cared about the child and that the child would be well loved in either household. The maternal grandparents then made a proffer of evidence, and the hearing ended.

On September 28, 2005, the juvenile court entered an order bearing case no. JU-05-1596.01 only, stating in relevant part, as follows:

“This matter came before the Court upon the Joint Stipulation for Custody filed by [the paternal grandparents] and [the parents]. -After review of the written agreement of [the paternal grandparents and the parents], the Court approves the ... agreement and incorporates the ... agreement into the Court’s Order on Petition for Custody as if fully set out herein. Accordingly the Court hereby ORDERS, ADJUDGES and DECREES as follows:
“1. The Agreement ... is ratified and adopted by the Court and the terms and conditions thereof are made a part[ ] of this custody order the same as if here written into, and it is ordered by the . Court that the parties keep and obey the terms thereof, subject to penalty as for contempt.
“2. This decree is a ‘CUSTODY DECREE’ OR ‘CUSTODY DETERMINATION’ under the Alabama enactment of the Uniform Child Custody Jurisdiction and Enforcement Act (U.C.C.J.E.A.), found at the Code of Alabama section 30-3B-101 et seq.
“3. This decree deviates from Rule 32 of the Alabama Rules of Judicial Administration in that it defers the imposition of a child support obligation. The Court finds said deviation to be fair and warranted due to the stated cause.
“4. Pursuant to the agreement ..., a Continuing Child Support Withholding Order shall not be served on the [parents’] employer^] at this time. Upon motion of any party to this action a Continuing Child Support Withholding Order shall be served upon either [parent’s] employer[ ].”

(Capitalization in original). Also, on September 28, 2005, the juvenile court entered a separate order in case no. JU-05-1584.01 and case no. JU-05-1596.01, stating in relevant part, as follows:

“It is of the opinion of this Court that the biological parents willingly placed their child in the physical care of the paternal grandparents ... and seek proper status for their placement. It is the finding of this Court that [the child] is NOT a dependent child. Request to Alter, Amend and/or Vacate this Court’s order of September [27], 2005 is DENIED.”

(Capitalization in original).

On October 11, 2005, the maternal grandparents filed a petition for a writ of mandamus, and on the same day the mother filed a notice of appeal. Because we conclude that the September 28, 2005, judgment was a final judgment, we treat the maternal grandparents’ petition for a writ of mandamus as an appeal. On November 15, 2005, this court entered an order consolidating the appeals.

“A finding of dependency must be supported by clear and convincing evidence. § 12 — 15—65(f)[, Ala.Code 1975]; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court’s ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep’t of Human Res., 716 So.2d 219 (Ala.Civ. App.1998); G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997); and J.M. v. State Dep’t of Human Res., 686 So.2d 1253 (Ala.Civ.App.1996).”

J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004). However,

“where the question presented on appeal is whether the trial court correctly applied the law, the ore tenus rule has no application. Ex parte Perkins, 646 So.2d 46 (Ala.1994). Where the issue presented is a question of law, this court’s review is de novo and no presumption of correctness attaches to the trial court’s judgment. Reynolds Metals Co. v. Hill, 825 So.2d 100 (Ala.2002).”

L.L.M. v. S.F., 919 So.2d 307, 311 (Ala.Civ.App.2005).

In the instant case, the dispositive issue on appeal is whether the juvenile court committed reversible error by refusing to conduct a hearing on the merits regarding the maternal grandparents’ allegations of the child’s dependency.

The maternal grandparents alleged in their April 19, 2005, petition that the child was dependent, and they set forth detailed facts in that petition and accompanying affidavits. Similarly, the paternal grandparents and the parents stipulated in their sworn April 26, 2005, pleading that the child was dependent and they likewise set forth detailed facts in that pleading and accompanying affidavit. “ ‘When the petitioners alleged that the child was dependent, that terminology triggered the trial court to utilize the dependency statutes of the juvenile code.’ ” W.T. v. State Dep’t of Human Res., 707 So.2d 647, 650 (Ala.Civ.App.1997) (quoting C.P. v. M.K., 667 So.2d 1357, 1360 (Ala.Civ.App.1994) (Thigpen, J., concurring specially in part and dissenting in part)).

We hold that in cases such as the one now before us in which there are allegations that the child is dependent, and in which the only sworn testimony before the juvenile court tends to establish that the child is dependent, the juvenile court commits reversible error by concluding that the child is not dependent without at least conducting an evidentiary hearing and affording the parties the opportunity to present evidence as to whether the child is a “dependent child” within the meaning of § 12-15-1(10). In such instances, § 12-15-65, Ala.Code 1975, clearly anticipates that the juvenile court will hold a hearing on the merits regarding the allegations of the child’s dependency. See Ex parte Linnell, 484 So.2d 455, 457 (Ala.1986) (stating that “pursuant to § 12-15-65, a hearing on the merits of the petition itself is required to determine if the children are, in fact, dependent, and there must be a disposi-tional hearing to determine who should be given custody of the [dependent] children”).

Therefore, we reverse the judgment of the juvenile court and remand the cause for the juvenile court to hold an evidentia-ry hearing and to decide the issue of dependency and related matters, if appropriate, and to enter a judgment accordingly.

The father’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, P.J., and BRYAN, J., concur.

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

MURDOCK, J., concurs in the judgment of reversal only, with writing.

MURDOCK, Judge,

concurring in the judgment of reversal only.

Although I agree with the majority that the juvenile court’s judgment should be reversed, I do so for a different reason. Concomitantly, while I also agree to remand the case, I disagree with the instructions given to the juvenile court on remand.

The matters presented in this case, including the allegations in the maternal grandfather and maternal stepgrandmother’s petition and the averments in the mother’s September 2005 filing, raise genuine issues as to not only whether the mother and the father were unfit to have custody of their child but also whether their unfitness extended further to their ability to make a fit and proper decision as to who should have custody of their child. Accordingly, a conclusion that, as a matter of law, the child is not dependent, which the juvenile court necessarily made when it decided the case without receiving evidence, cannot be sustained on the ground cited by the juvenile court, i.e., that the parents had chosen to place the child with the paternal grandparents and therefore the child was not in need of care or supervision by the State. See Ala.Code 1975, § 12-15-1 (10)n. For that reason alone, I agree that the judgment of the juvenile court must be reversed.

I do not agree, however, with the instruction in the main opinion for the juvenile court, on remand, to take evidence on the issue of dependency. Despite the allegations in the maternal grandfather and maternal stepgrandmother’s “Petition for Legal and Physical Custody” and then-subsequent filings with the juvenile court, they obviously do not contend that they are not fit and proper custodians for the child. Indeed, they seek custody of the child. The paternal grandparents also seek custody of the child, asserting that they too are fit and proper custodians for the child. Neither set of grandparents contends that the child is in need of the care or supervision of the State, as required by § 12-15-l(10)n. in defining a “dependent child.” See also Ala.Code 1975, § 12 — 15—52(c)(1) (“The petition shall set forth with specificity ... [t]he facts constituting the dependency ... and that the child is in need of supervision, treatment, rehabilitation, care or the protection of the state, as the case may be”). Rather, both sets of grandparents contend that the child is simply in need of care or supervision by them. Thus, this controversy is in the nature of a custody dispute between two sets of prospective custodians, both of whom allege themselves to be fit and proper custodians for the child, and both of whom “concede” or allege that the parents are not fit and proper custodians. See Ex parte Terry, 494 So.2d 628 (Ala.1986).

The juvenile court is a court of limited jurisdiction. See Ala.Code 1975, § 12-15-30. As to dependency proceedings, the juvenile court is authorized to enter a dis-positional order that restricts a parent’s custodial rights only when the child is a dependent child. See Ala. Code 1975, §§ 12-15-65(d), 12 — 15—65(f), and 12-15-71(a). In particular, the last sentence of § 12 — 15—65(d) requires the juvenile court to dismiss a dependency petition when it finds that the allegations of the petition have not been established. As noted above, neither the petitions in the present case nor the other portions of the record relied on by the mother, the maternal grandfather, and the maternal stepgrand-mother appear to suggest that the child at issue is in fact in need of the State’s care or supervision or that any party desires for the State to assume or oversee the care or supervision of the child for even a limited period of time while the question of who a fit and proper custodian is is determined. Instead, this proceeding is in the nature of a custody case that does not belong before the juvenile court, which the juvenile court correctly noted during the September 2005 hearing.

Based on the foregoing, I would reverse the trial court’s judgment, but I would remand the case to the trial court for it to dismiss the case because, under the circumstances presented, it has no authority to enter a judgment awarding custody of the child to anyone.

      . The maternal grandparents actually filed two pleadings on April 19, 2005 — one styled "petition for legal and physical custody and request for pendente lite relief” and one styled "motion for pendente lite relief.”

      . Along with the "joint stipulation,” the paternal grandparents submitted an affidavit of their own. In the affidavit, the paternal grandparents restated some of the facts in the "joint stipulation” and further stated that they had "a suitable home and [were] financially capable of caring for the child.”

      . The record reflects that on December 22, 2005, the juvenile court granted the maternal grandparents’ December 20, 2005, motion to supplement the record.

      . Also, on September 27, 2005, the juvenile court clerk entered a default against the parents in case no. JU-05-1584.01 and case no. JU-05-1596.01. However, the juvenile court did not enter default judgments against them.

      . Although the juvenile court’s September 28, 2005, judgment did not specifically address the maternal grandparents’ request for visitation rights, we conclude that the juvenile court implicitly denied that claim in its September 28, 2005, judgment. In its September 28, 2005, judgment, the juvenile court declined to set aside its September 27, 2005, order. In its September 27, 2005, order, the juvenile court, after determining that the child was not a "dependent child,” determined, among other things, that "[t]his Court is unable to establish a 'right to reasonable visitation' for the [maternal] grandparents.” In addition, during the September 28, 2005, hearing, the juvenile court, after stating that it did not find the child to be a "dependent child,” stated that "[t]his court is without the legal authority to [address] grandparent visitation.”

      . Because we reverse the juvenile court’s judgment as to this issue, it is not necessary for us to address the remaining issues on appeal.

      . As the child’s guardian ad litem commented during the hearing, “both the [paternal grandparents] and the [maternal grandfather and maternal stepgrandmother] generally care about their grandson. I think that both of them want what’s best for him. Obviously, it's a difference of opinion of where that would be. But I feel secure that he would be well loved with either household.”


author: PITTMAN, Judge.

text:
    Lee B. WILLIAMS et al. v. LAUBENTHAL LAND & TIMBER CO.
    2040801.
    Court of Civil Appeals of Alabama.
    May 5, 2006.

      Wyman 0. Gilmore, Jr., and Lamar C. Johnson of Gilmore Law Office, Grove Hill, for appellants.
    Edward P. Turner, Jr., and Laura 0. Olin of Turner, Onderdonk, Kimbrough & Howell, P.A., Chatom, for appellee.
   PITTMAN, Judge.

Lee B. Williams, Patricia H. Williams, and Sarah Ruth Williams, owners of a tract of real property located in Washington County that is adjacent to a tract owned by Laubenthal Land & Timber Co. (“LL & T”), appeal from a judgment entered by the Washington Circuit Court in an action brought by LL & T seeking the ascertainment of the boundary line between the tracts.

LL & T initiated the action in May 1998 by filing a complaint in which LL & T alleged that it owned property described as “[a]ll of Section 30, except Harris Lands, Township 5 North, Range 1 East” and the “North Division of Section 41, Township 5 North, Range 1 East.” LL & T alleged that the Williamses owned “Section 36, Township 5 North, Range 1 East, also known as the Wyche Watley Claim ... less 8 acres on the West side thereof.” The complaint further averred that the boundary line between the parties’ tracts “ha[d] been maintained and recognized by the[ir] predecessors in title ... for more than twenty years along a blue painted line.” Apparently in the alternative, LL & T alleged that it had been in “adverse possession” of lands up to the blue line in excess of 20 years. Asserting that a dispute had arisen concerning the correct boundary line, LL & T requested that the trial court establish the “blue painted line” as the boundary between the tracts. The Williamses’ answer, filed immediately before trial in 2004, admitted that they were “the owners of Section 36, Township 5 North, Range 1 East, less and except eight (8) acres on the western border thereof’ but denied the remainder of the averments in the complaint.

During discovery in January 2000, the Williamses propounded an omnibus lay- and expert-witness-disclosure interrogatory to LL & T seeking “the name and address of each person, including experts, having any knowledge of relevant facts.” The Williamses also asked whether any surveys had been made “of a part or all of the boundaries of the property” and requested that information regarding any such surveys be disclosed and a copy of such surveys be produced. LL & T made initial responses to those interrogatories and requests in May 2000, identifying 11 witnesses and one recorded survey. In May 2004, approximately one month before trial, LL & T supplemented its response to the witness-disclosure interrogatory, identifying Gregory C. Spies, a surveyor from Coden, Alabama, as an expert witness; however, at that time, Spies had apparently not prepared documentation of his surveying work as to the location of the boundary line. Notably, the Williamses did not take Spies’s deposition before trial.

When the trial commenced, counsel for LL & T announced that it was “not claiming adverse possession across the Section line” and stated that “[t]he real issue in the case is where the Section line is.” Counsel for the Williamses moved to exclude from evidence a plat that Spies had prepared; the motion to exclude was based upon the delay in production of the document by counsel for LL’ & T until immediately before the trial. In response, counsel for LL & T averred that he had given the Williamses’ counsel a copy of the plat “[a]s soon as I got it, which was this morning,” ie., the morning of the trial, and Spies confirmed in his testimony that he had provided a copy of the plat to counsel for LL & T only on the day of the trial. The trial court permitted Spies to testify and allowed Spies’s plat into evidence.

After an ore tenus proceeding, the trial court entered a judgment determining the north and east boundary lines of Section 36, ie., the section lines that formed the true boundary line between the tracts. The section boundary lines set forth in the judgment were in accordance with lines endorsed by Spies and another surveyor, Milton Schell, and advocated by LL & T. The Williamses appealed after their Rule 59, Ala. R. Civ. P., motion had been denied; the Alabama Supreme Court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

We note that a judgment establishing a boundary line between coterminous landowners on evidence submitted ore tenus is presumed to be correct and need only be supported by credible evidence and that, if that judgment is so supported, the trial court’s judgment will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Todd v. Owens, 592 So.2d 534, 535 (Ala.1991). The presumption of correctness is “especially strong” in boundary line dispute cases “because it is difficult for the appellate court to review the evidence in such cases.” Id.

The first contention asserted by the Williamses is that the judgment is not supported by the evidence. Seizing upon the reference in the complaint to “adverse possession,” the Williamses contend that LL & T was required to prove hostile, notorious, open, continuous, and exclusive possession of the lands up to the blue line by “clear and convincing evidence.” That contention overlooks the request in the complaint that the trial court ascertain and declare the true boundary line between the properties and the concession at trial by LL & T (made before evidence was received) that LL & T was not claiming adverse possession of land across the section line. It is settled that when adverse possession is not an issue, and adjacent landowners, as here, claim lands defined in terms of government section numbers, “the controlling inquiry is as to the location of the line in dispute by the government numbers.” O’Rear v. Conway, 263 Ala. 466, 467, 83 So.2d 65, 65-66 (1955); see also Dial v. Bond, 849 So.2d 189, 191—92 (Ala.Civ.App.2002) (when land is described in a deed by government numbers, the deed does not purport to convey an area outside of such described land). By disclaiming adverse possession, LL & T removed from the case any issue other than ascertainment of the proper boundary lines; thus, LL & T had no “burden of proof’ to meet in order to warrant a judgment in its favor. As the Supreme Court noted in Ray v. Robinson, 388 So.2d 957, 962 (Ala.1980), both the plaintiff and the defendant in a boundary-line dispute “will necessarily proffer evidence on that ultimate issue; however, neither party carries the burden of proving the true location of the line by a preponderance of the evidence.”

With that principle in mind, we now turn to the central question presented by the Williamses’ appeal: Are the boundary lines found by the trial court adequately supported by the evidence? We must answer that question in the affirmative. As the complaint indicates, LL & T holds the title to property located in Washington County and described as portions of Section 41 and Section 30, Township 5 North, Range 1 East; those two tracts have been held by LL & T or by its individual principals since 1919. The bulk of Section 36 has been owned by one or more of the Williamses since 1975. The record reveals that each tract at issue is located in close proximity to the Tombigbee River and that each party’s chain of title ultimately derives from “private preemptive claims” that predate both Alabama’s statehood and United States sovereignty over the land in question.

The process by which lands located in that portion of Washington County were officially surveyed, compared to the process undertaken in other areas of Alabama, can charitably be described as irregular. One of the surveyors called to testify by LL & T, Milton Schell, testified that the official survey undertaken in the pertinent area of Washington County relied upon documentation produced by landowners who had made “private preemptive claims” and upon stepped-off measurements. According to Greg Spies’s testimony, during the first decade of the 19th century, federal land commissioners adjudicated the validity of preexisting land claims and claimants paid for a government survey to be undertaken; the official public-land survey in the area, which did not take place until 1843, simply relied upon the preemption lines in classifying section boundaries. The official surveying process undertaken thus rendered the resulting section classification anything but uniform. For example, the record reveals that although Section 30 is basically rectangular in shape, the northeast corner of the rectangle formed by extension of the section’s northern and eastern boundaries actually lies in a wholly different section (Section 16). Without belaboring the unlikelihood of such conditions existing in other Alabama townships, suffice it to say that in this case the bulk of the southern border of Section 30 is also the northern border of Section 36 and the bulk of the western border of Section 41 is also the eastern border of Section 36.

Marion Laubenthal, the president of LL & T, testified that he had been familiar with the lands in question for the preceding 50 years. Throughout that period, Laubenthal testified, the borders between the two LL & T tracts and the Williamses’ tract had been marked by a painted blue line. Laubenthal also testified to the existence of a marker that was located at the southeast corner of Section 36 and an ironwood tree marked with the letter “X” and by blue paint that was located at the northeast corner of Section 36. He added that the first indication he had received of a dispute regarding the boundary lines between the parties’ tracts had been a 1995 letter from Lee Williams “taking exception to the lines.” In addition, Thomas Randal Williams, who has worked for a company that holds rights to hunt on LL & T property, testified that the blue line had existed since 1964, and Jim Heath, a forester, testified that he had located and repainted boundary markers on the northwest and southeast corners of Section 36 when he had repainted the blue boundary line on two occasions 10 years apart. Also, Emory Mosley and Roland Bishop, who work in the logging industry, both testified that they had observed the blue painted lines when harvesting timber from the Williamses’ tract.

Milton Schell, one of two surveyors called by LL & T, testified that he had prepared a plat based upon the landmarks he observed on the disputed property and government-survey field notes he had obtained. He testified, among other things, to the existence of a pipe appearing at the southeast corner of Section 36 and to the presence of a blue painted line along the eastern and northern borders of Section 36. The other surveyor called by LL & T, Greg Spies, testified that he had been employed to verify the results of Schell’s survey and to prepare a plat; Spies confirmed that Schell’s survey was valid. Spies testified that, based upon his examination of the lands in question, the original field notes describing the property that would ultimately be identified as Section 36 and later conveyed in large part to the Williamses contained an erroneous set of directional calls from that section’s point of origin, which was the northwest corner of the property that would ultimately be identified as Section 41 (part of LL & T’s tract). Spies opined that the monuments he had located indicated that Section 36 was properly found by initially proceeding tvest from the field notes’ point of origin rather than east; further, he opined that it would be improper surveying protocol to begin a survey of Section 36 based upon the opposite, ie., the southwest, corner, as the surveys relied upon by the Williamses did.

In Pounders v. Nix, 222 Ala. 27, 130 So. 537 (1930), the parties, like the parties in this case, disputed the precise location of a boundary line that also happened to be a governmental section line; although they agreed that the section line was the boundary line, they differed “as to the location of the line where it passe[d] [a] spring; that is, whether it passe[d] immediately east of the spring at the water’s edge, or at or near the center of the spring.” 222 Ala. at 28, 130 So. at 538. The Supreme Court held in that case that “any testimony tending to show the location of the line as established by the government survey is admissible” and that “ ‘[wjhere the location of section lines, or their subsidiaries, is in dispute, a witness who is not an expert surveyor may testify to existing and visible lines and monuments which have been adopted or assented to by adjacent owners.’ ” 222 Ala. at 28-29, 130 So. at 538-39 (quoting Deal v. Hubert, 209 Ala. 18, 19, 95 So. 349, 350 (1923)) (first emphasis added; second emphasis original). Thus, the lay witnesses’ testimony concerning the location and duration of the blue painted line along the boundaries of LL & T’s tract, coupled with the surveyors’ testimony concerning the concurrence of that line with the true location of the section line that forms the boundary between the parties’ tracts, amounts to substantial evidence that supports the trial court’s judgment.

The Williamses also contend that the survey documents prepared by Spies should not have been admitted into evidence because, they say, those documents were not timely produced in response to a request for surveys of the boundaries of the tracts in question. However, whether to admit testimony or documentary evidence that may not have been properly disclosed during discovery is within the sound discretion of the trial court, and the decision of the trial court will not be reversed absent a palpable abuse of that discretion. Coastal Lumber Co. v. Johnson, 669 So.2d 803, 811-12 (Ala.1995) (testimony); and Lindsey v. Watson Van Lines, 722 So.2d 774, 777 (Ala.Civ.App.1998) (documents).

We note that counsel for LL & T stated on the record that he himself had received the survey documents from Spies only on the morning of the trial, that Spies had been named as an expert witness one month before trial in a supplemental response to the Williamses’ interrogatories, and that the record does not reflect any attempt by the Williamses to depose Spies or to move for a continuance to conduct such a deposition in response to receiving the survey documents. As the Supreme Court noted in Coastal Lumber, such a failure to request a continuance could have suggested to the trial court that the Williamses were satisfied that through cross-examination and submission of their own evidence, they could discredit Spies’s survey and his testimony thereon. 669 So.2d at 811. The trial court could properly have concluded in this case (1) that LL & T, having supplemented its interrogatory responses to reveal Spies’s identity as an expert witness, had acted in good faith; (2) that the survey documents in question were not received by counsel for LL & T from Spies until just before the trial and could not have been provided to counsel for the Williamses any sooner than they were; and (3) that the Williamses were sufficiently confident in the strength of their case not to seek a continuance upon receiving Spies’s survey documents. As a result, the admission of the survey documents was not an abuse of discretion.

Based upon the foregoing facts and authorities, the trial court’s judgment is due to be affirmed.

AFFIRMED.

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

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

      . Indeed, in the sole authority cited by the Williamses as to this issue, Nash v. Cosby, 574 So.2d 700 (Ala.1990), the trial court’s decision to exclude testimony from an expert not identified as required by a pretrial order was affirmed on the basis that the exclusion of that testimony amounted to a " 'matter of discretion not subject to reversal.’ ” 574 So.2d at 702 (quoting Super Valu Stores, Inc. v. Peterson, 506 So.2d 317, 338 (Ala.1987)).

      . Our conclusion as to this issue obviates the need to consider whether Spies’s survey findings were merely cumulative of evidence adduced by Schell, an argument advanced by LL & T but disputed by the Williamses in their reply brief.