author:
WOODALL, Justice.
      MURDOCK, Justice

text:
    Lou Ann DOWNEY and Delbert Downey v. TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY.
    1100272.
    Supreme Court of Alabama.
    June 30, 2011.

      Myron K. Allenstein and Rose Marie Allenstein of Allenstein & Allenstein, LLC, Gadsden, for plaintiffs.
    Brenen G. Ely and Susan Haygood McCurry of Ely & Isenberg, LLC, Birmingham, for defendant.
   WOODALL, Justice.

The United States District Court for the Northern District of Alabama, Middle Division, has certified to this Court the following question:

“Under Alabama law does the failure of an insured to give prior notice to his or her insurer of a proposed settlement and release of an alleged tortfeasor cause the insured to forfeit underinsured motorist coverage regardless of the insured’s actual knowledge of said coverage and regardless of prejudice to the insurer if the insured has possession of the policy which provides the coverage?”

We answer this question in the affirmative.

I. Factual Background

The facts are undisputed. On April 21, 2007, Delbert Downey was opex-ating a motorcycle on which Lou Ann Downey was a passenger. While the Downeys’ motorcycle was stopped at an intersection controlled by a traffic light, an automobile operated by Wyndell Thompson approached the intersection from the Dow-neys’ rear. Mrs. Downey was seriously injured when Thompson failed to stop.

At the time of the accident, a number of insurance policies were in force. Thompson had a liability policy issued by First Acceptance Insurance Company, Inc. (“First Acceptance”), in the amount of $10,000. The Downeys had, among others, a Personal Automobile Insurance Policy (“the policy”) issued by Travelers Property Casualty Insurance Company (“Travelers”). Each of the Downeys was a named insured on the policy. The policy listed three of the Downeys’ vehicles, none of which was the motorcycle. The policy provided uninsured/undei’insured-motorist coverage as follows:

“COVERAGE D1 UNINSURED MOTORISTS (BODILY INJURY)
“INSURING AGREEMENT
“A. We will pay damages which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘uninsured, motor vehicle’ because of ‘bodily injury’:
“1. Sustained by an ‘insured’; and
“2. Caused by an ‘accident.’
“The owner’s or operator’s liability for these damages must ai'ise out of the ownership, maintenance or use of the ‘uninsured motor vehicle.’
“B. ‘Insured’ as used in this coverage means:
“1. You or any ‘family member.’
“2. Any other person ‘occupying’ ‘your covered auto.’
“C. ‘Uninsured motor vehicle’ means a land motor vehicle or trailer of any type:
“1. To which no bodily injury liability bond or policy applies at the time of the accident.
“2. To which a bodily injury liability bond or policy applies at the time of the accident. In this case its limit for bodily injury liability must be less than the minimum limit for bodily injury liability specified by the financial responsibility law of Alabama.
“3. For which the sum of the limits of liability under all bodily injury liability bonds or policies applicable at the time of the accident is not enough to pay the full amount the ‘insured’ is legally entitled to recover as damages. In this case the applicable limits for bodily injury liability must be equal to or greater than the minimum limit for bodily injury liability specified by the financial responsibility law of Alabama.
“EXCLUSIONS
“A. We do not provide Uninsured Motorists Coverage for ‘bodily injury’ sustained by any ‘insured’:
“1. If that ‘insured’ or the legal representative settles the ‘bodily injury’ claim without our consent.”

(Emphasis added.)

On July 8, 2008, the Downeys, in consideration of $10,000 — while represented by counsel but without having notified Travelers of the accident and without notifying it that they were doing so — executed a general release fully discharging Thompson and First Acceptance from all liability arising out of the accident. On August 19, 2009, the Downeys, represented by different counsel, notified Travelers for the first time of the accident and that they were making a claim for underinsured-motorist (“UIM”) benefits under the policy. Travelers denied the claim pursuant to Exclusion A.l. of the policy because of the Dow-neys’ failure to obtain its consent to the settlement.

Subsequently, the Downeys sued Travelers in the Etowah Circuit Court alleging breach of contract. Travelers removed the case to the United States District Court for the Northern District of Alabama, Middle Division. Each side moved for a summary judgment. In opposition to Traveler’s motion, the Downeys submitted their own affidavits addressing the pre-settlement-notification issue. Specifically, they stated that the reason they “did not notify Travelers of the liability settlement is because [they] did not know [they] had UIM coverage because [they] had no UIM coverage on the motorcycle which was involved in the accident.” (Emphasis added.) The federal district court certified to this Court the question regarding the legal effect of the Downeys’ alleged ignorance of the scope of the policy’s coverage.

II. Discussion

Central to this case is Lambert v. State Farm Mutual Automobile Insurance Co., 576 So.2d 160 (Ala.1991), which defines the respective rights and duties of insureds and their UIM insurers when the tortfea-sor’s liability insurer offers to settle for its policy limits. Lambert was an action brought by Shelby Lambert and her husband against their own UIM carrier, State Farm Mutual Automobile Insurance Company (“State Farm”), after Shelby Lambert was injured in an automobile accident and State Farm refused to consent to an offer by Alfa Mutual Insurance Company (“Alfa”), the alleged tortfeasor’s liability insurer, to settle with the Lamberts for $25,000, the limits of the tortfeasor’s policy with Alfa. 576 So.2d at 162. Indeed, State Farm had “informed the Lamberts that if they accepted Alfa’s settlement offer without first obtaining State Farm’s written consent, as required by their policy, State Farm would refuse to pay any underinsured motorist benefits.” Id. In their complaint, the Lamberts asserted “that the policy provisions that required them to obtain State Farm’s consent before they could settle with the tortfeasor were unconscionable, violative of public policy, and void.” Id.

In lieu of holding that consent-to-settle clauses were unenforceable, this Court set forth a framework “that will guarantee that the insured will receive the benefits of the bargain he has made, but that will, at the same time, protect the [UIM] insur-anee carrier’s subrogation rights against the tort-feasor ... and also protect the carrier against the possibility of collusion between the tort-feasor and his liability insurer,” 576 So.2d at 166, stating, in pertinent part:

“[ (1) ] If the tort-feasor’s liability insurance carrier and the insured enter into negotiations that ultimately lead to a proposed compromise or settlement of the insured’s claim against the tort-fea-sor, and if the settlement would release the tort-feasor from all liability, then the insured, before agreeing to the settlement, should immediately notify the un-derinsured motorist insurance carrier of the proposed settlement and the terms of any proposed release.
“[ (2) ] At the time the insured informs the underinsured motorist insurance carrier of the tort-feasor’s intent to settle, the insured should also inform the carrier as to whether the insured will seek underinsured motorist benefits in addition to the benefits payable under the settlement proposal, so that the carrier can determine whether it will refuse to consent to the settlement, will waive its right of subrogation against the tort-feasor, or will deny any obligation to pay underinsured motorist benefits. If the insured gives the underinsured motorist insurance carrier notice of the claim for underinsured motorist benefits, as may be provided for in the policy, the carrier should immediately begin investigating the claim, should conclude such investigation within a reasonable time, and should notify its insured of the action it proposes with regard to the claim for underinsured motorist benefits.
“[ (3) ] The insured should not settle with the tort-feasor without first allowing the underinsured motorist insurance carrier a reasonable time within which to investigate the insured’s claim and to notify its insured of its proposed action.
“[ (4) ] If the uninsured motorist insurance carrier refuses to consent to a settlement by its insured with the tort-feasor, or if the carrier denies the claim of its insured without a good faith investigation into its merits, or if the carrier does not conduct its investigation in a reasonable time, the carrier would, by any of those actions, waive any right to subrogation against the tort-feasor or the tort-feasor’s insurer.
“[ (5) ] If the underinsured motorist insurance carrier wants to protect its subrogation rights, it must, within a reasonable time, and, in any event before the tort-feasor is released by the carrier’s insured, advance to its insured an amount equal to the tort-feasor’s settlement offer.”

Lambert, 576 So.2d at 167 (emphasis added).

Notwithstanding the Lambert framework, the Downeys contend that “Alabama [case]law recognizes that lack of notice is excusable under certain circumstances.” The Downeys’ brief, at 3. This argument is unavailing.

“In the typical case, the insured must, at a minimum, put on evidence showing the reason for not complying with the [insurer’s] notice requirement. This prerequisite satisfied, the insurer may then demonstrate that it was prejudiced by the insured’s failure to give timely notice.” State Farm Mut. Auto. Ins. Co. v. Burgess, 474 So.2d 634, 637 (Ala.1985) (emphasis added). If no reason is given, however, a summary judgment for the insurer denying UIM benefits is appropriate. See Ex parte Morgan, 13 So.3d 385 (Ala.2009) (where insured gave no reason for affording the insurer only 10 days’ notice of the settlement negotiations, the notice was unreasonable as a matter of law); Overstreet v. Safeway Ins. Co. of Alabama, 740 So.2d 1053 (Ala.1999) (affirming a summary judgment for the insurer denying UIM benefits when the insured offered no excuse for its clandestine settlement with the tortfeasor); Jones v. Allstate Ins. Co., 601 So.2d 989 (Ala.1992) (no reason given); Brantley v. State Farm Mut. Auto. Ins. Co., 586 So.2d 184 (Ala.1991) (no reason given). Similarly, where a proffered reason is invalid as a matter of law, the noncompliance stands unexcused. See Reeves v. State Farm Fire & Cas. Co., 539 So.2d 252, 255 (Ala.1989).

The only reason proffered by the Downeys for their noncompliance with the notice requirement regarding settlement of their claim is that they did not know that the policy provided UIM coverage for the bodily injuries suffered by Mrs. Dow-ney while riding the motorcycle. It is well settled, however, that “ ‘uninsured motorist coverage inures to a person, not to a vehicle.’ ” State Farm Mut. Auto. Ins. Co. v. Jackson, 462 So.2d 346, 353 (Ala.1984) (quoting and adopting opinion of United States Court of Appeals for the Eleventh Circuit). In other words, “uninsured motorist coverage is not dependent on the insured person being injured in connection with a vehicle which is covered by the liability insurer against whom recovery is sought under the uninsured motorist provisions.” Id. Indeed, the Downeys do not contend that they misunderstood the meaning of the provision. Thus, it is implicit that they simply did not read their policy.

It is clear, however, that where a named insured not only has possession of the policy but also is represented by counsel, ignorance of policy terms resulting from a failure to read the policy does not, as a matter of law, constitute an acceptable excuse for noncompliance with the notification requirements of the policy. See Southern Guar. Ins. Co. v. Thomas, 334 So.2d 879, 884 (Ala.1976) (where the insured is represented by counsel, excuse of ignorance of policy coverage “is clearly unreasonable and affords no basis for submitting the reasonableness of the delay [in notifying insurer of potential claim] to the jury”). Cf. Watson v. Alabama Farm Bureau Mut. Cas. Ins. Co., 465 So.2d 394, 397 (Ala.1985); Reeves, 539 So.2d at 255 (where the insured has “possession of the policy and ample opportunity to read it,” the ignorance-of-coverage excuse is unreasonable as a matter of law). Indeed, the manifest mischief that would ensue from the adoption of a contrary rule is not difficult to imagine.

III. Conclusion

In this case, the Downeys were at all relevant times in possession of the policy, which clearly provided UIM coverage to them for bodily injury caused by the operator of an “uninsured motor vehicle.” Not only so, but they were represented by legal counsel when, without prior notice to Travelers, they settled with Thompson and released him from all further liability. The only excuse they offer is that they were ignorant of the coverage the policy provided. That excuse is unreasonable as a matter of law. Consequently, they have not met the threshold of showing any alleged “certain conditions” under which “lack of notice [may be] excusable.” In other words, the Downeys have “forfeited]” UIM coverage.

QUESTION ANSWERED.

COBB, C.J., and STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ„ concur.

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

I concur in the result.

The underinsured-motorist (“UIM”) insurance contract at issue in this case, like most such contracts, contains a clause that purports to prevent the insured from settling with an alleged tortfeasor without the consent of the insurance carrier to the proposed settlement. In Lambert v. State Farm Mutual Automobile Insurance Co., 576 So.2d 160 (Ala.1991), in an effort to uphold the purpose of the UIM statute, Ala.Code 1975, § 32-7-23, while simultaneously protecting UIM carriers, this Court placed a judicial overlay on such no-settlement-without-consent provisions. This overlay appears to constitute a complete procedural scheme that includes a recognition that a UIM carrier is entitled to reasonable notice and an opportunity to investigate and respond to any proposed settlement with, and release of, an alleged tortfeasor. I question whether our law places an additional overlay on such contractual provisions based upon the holding in State Farm Mutual Automobile Insurance Co. v. Burgess, 474 So.2d 634 (Ala.1985).

Burgess was decided in 1985, six years before the adoption in Lambert of the above-referenced procedural scheme. Moreover, Burgess addressed the possibility of an insured’s being excused from giving notice of his or her accident; it did not concern the issue whether an insured could ever be excused from giving notice of a proposed settlement.

      . The motorcycle was insured by yet a third insurer that did not provide uninsured/under-insured-motorist coverage.

      . Lambert thus answers any contention that consent-to-settle clauses violate public policy or the Alabama Motor Vehicle Safety-Responsibility Act, Ala.Code 1975, § 32-7-23 ("the Act”). In other words, operation within the Lambert framework obviates concern over any alleged conflict with the Act.


source: Caselaw Access Project

author: MOORE, Judge. THOMAS, Judge,

license: Public Domain

text:
    CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES v. Wesley FRYE, as guardian and conservator of Dorothy Ann Wilkinson, an incapacitated person. Calhoun County Department of Human Resources v. Wesley Frye, as guardian and conservator of Velma Harris, an incapacitated person.
    2100403 and 2100404.
    Court of Civil Appeals of Alabama.
    June 24, 2011.

      Sharon E. Ficquette, chief legal counsel, and Kimberly J. Dobbs, asst. atty. gen., Department of Human Resources, for appellant.
   MOORE, Judge.

In case no. 2100403, the Calhoun County Department of Human Resources (“DHR”) appeals from a judgment of the Calhoun Circuit Court (“the trial court”) awarding Wesley Frye, a lawyer who had been appointed as the guardian and conservator of Dorothy Ann Wilkinson, an incapacitated person, payment for his “time, effort, and expenses” in civil action number CV-10-37; the trial court taxed the amount as “costs” to DHR. In case no. 2100404, DHR appeals from a judgment of the trial court awarding Frye, who had been appointed as the guardian and conservator of Velma Harris, an incapacitated person, payment for services and expenses provided by him to Harris; the trial court taxed those fees and expenses as “costs” to DHR.

Case no. 2100⅛03

On February 3, 2010, DHR petitioned the trial court to initiate a guardianship and conservatorship of Wilkinson. DHR asserted that, because of mental and physical infirmities, Wilkinson was in need of protection and that she had no guardian, relative, or other appropriate person available to protect and supervise her. The trial court appointed a guardian ad litem to represent Wilkinson’s interest during the proceedings. After a hearing, the trial court granted DHR’s petition and, on April 13, 2010, appointed Frye as Wilkinson’s guardian and conservator. In its order, the trial court indicated that the costs of the proceeding would be taxed against Wilkinson’s estate. The trial court further indicated that the previously appointed guardian ad litem was entitled to a fee of $202.50 for services rendered, to be taxed against Wilkinson’s estate.

On September 29, 2010, Frye moved the trial court to approve payment to him of $6,706 in fees and expenses, which, he asserted, he had incurred in his role as Wilkinson’s guardian and conservator. He submitted billing statements indicating that he was seeking payment for the time he had spent engaged in, among others, telephone discussions with employees at Wilkinson’s nursing home and the routine handling of her bills and other day-to-day matters involving Wilkinson’s affairs.

On that same date, the trial court granted Frye’s motion, taxing costs to DHR in the amount of $6,706. On October 14, 2010, Frye submitted a request to the trial court for an award of additional funds with which he could pay the guardian ad litem’s bill for $202.50 for services rendered; Frye represented to the trial court that he had been “informed there are insufficient assets in Miss Wilkinson’s estate to pay the fee of $202.50 ordered by this Court.” As a result, Frye requested that the trial court order payment of those fees by DHR. On October 20, 2010, “for good cause shown,” the trial court ordered DHR to pay the guardian ad litem’s fee of $202.50.

On October 25, 2010, DHR moved the trial court to alter, amend, or vacate its orders requiring DHR to pay Frye’s fees and expenses and the $202.50 to the guardian ad litem. That motion was deemed denied by operation of law. DHR timely filed its notice of appeal with this court.

Case no. 2100WU

On March 28, 2010, DHR petitioned the trial court to initiate a guardianship and conservatorship of Velma Harris. After appointing a guardian ad litem to represent the interests of Harris during the proceedings, the trial court ultimately granted DHR’s petition and appointed Frye as Harris’s guardian and conservator. In its order, the trial court awarded the guardian ad litem a fee of $793.75 and the court representative a fee of $1,062.50 for the services they had rendered; the trial court also indicated that “the costs of this proceeding shall be taxed against [DHR]” but that, “[a]t such time as [Harris’s estate] is able to pay the expenses hereby taxed against [DHR], then said Estate shall reimburse [DHR] for such costs.” Letters of guardianship/conserva-torship were issued to Frye on April 20, 2010.

On June 10, 2010, the trial court entered another order awarding the guardian ad litem an additional fee of $943.75 and the court representative an additional fee of $1,300. In that order, the trial court stated: “The costs of these continued proceedings shall be taxed against [DHR]. At such time as [Harris’s estate] is able to pay the expenses hereby taxed against [DHR], then said Estate shall reimburse [DHR] for such costs.” The trial court also reissued letters of guardianship/conservator to Frye on June 18, 2010.

On September 29, 2010, Frye sought to obtain $5,740 as payment for the time and effort he had expended in his role as Harris’s guardian and conservator. He submitted itemized billing statements indicating that he was seeking payment for time he had spent addressing, among others, issues regarding Harris’s living facility and family visitation, the medical care to be provided to Harris, and Harris’s finances. On October 26, 2010, the trial court granted Frye’s motion for payment, taxing $5,740 to DHR as costs. DHR timely moved to alter, amend, or vacate that order; that motion was deemed denied by operation of law. DHR timely filed its notice of appeal.

Analysis

DHR asserts that the trial court erred in taxing the fees of the guardian and conservator against DHR. Payment of fees and expenses for conservators and guardians in protective proceedings is governed by Ala.Code 1975, § 26-2A-142, which provides as follows:

“(a) If not otherwise reasonably compensated for services rendered, any court representative, attorney, physician, conservator, or special conservator appointed in a protective proceeding and any attorney whose services resulted in a protective order or in an order that was beneficial to a protected person’s estate is entitled to reasonable compensation from the estate. The conservator shall be allowed from the estate of the protective person all reasonable premiums paid on his or her bond and reimbursement of any court costs paid.
“(b) If not otherwise reasonably compensated for services rendered, any court representative, attorney, physician appointed in a guardianship, and any attorney whose services resulted in a guardianship order or in an order that was beneficial to a ward is entitled to reasonable compensation from the estate. The guardian may be reimbursed from the estate of the ward for any court costs paid.
“(c) Except when the petitioner is related by blood or marriage to the individual who is the subject of the proceeding, if the assets of the estate in a protective proceeding or in a guardianship proceeding are not sufficient to provide reasonable compensation and pay court costs as permitted in subsections (a) and (b), the compensation of any guardian ad litem, court representative, or physician appointed by the court and court costs associated with the petition or motion may be taxed by the court with regard to any particular petition or motion presented to the court to the petitioner as additional costs to the petitioner.”

In State Department of Human Resources v. Estate of Harris, 857 So.2d 818 (Ala.Civ.App.2002), this court addressed the method by which conservators and guardians in protective proceedings may obtain payment of their fees. In Estate of Harris, the probate court ordered the State Department of Human Resources (“the State DHR”) to pay attorney fees and overhead expenses for the conservator and to pay the guardian ad litem’s attorney fees. 857 So.2d at 819-20. The State DHR appealed.

On appeal, this court reviewed the mechanisms by which a trial court may award attorney fees — e.g., by statute, by the terms of a contract, or by “special equity” — and concluded that none of those mechanisms applied to a protective proceeding involving an adult incapacitated person. Id. at 820. This court also concluded that none of the conservator’s claimed expenses were properly considered “costs” taxable to the State DHR at the conclusion of the case, that the conservator could not be awarded an attorney fee as a “prevailing party,” and that the guardian ad litem could not be awarded a fee under Rule 17(d), Ala. R. Civ. P. (addressing an award of fees in cases in which appointment of a guardian ad litem is required). Id. at 820-21.

As a result, this court concluded that it must look to the Uniform Guardianship Act, Ala.Code 1975, § 26-2A-1 et seq., to determine the method by which payment of fees to those persons appointed as conservator and guardian ad litem should be awarded and from what source those fees should be paid. Estate of Harris, 857 So.2d at 821. This court stated:

“Section 26-2A-142(a), Ala.Code 1975, ... provides that ‘any court representative, attorney, physician, conservator, or special conservator appointed in a protective proceeding and any attorney whose services resulted in a protective order ... is entitled to reasonable compensation from the estate.’ (Emphasis added.) Section 26-2A-142(a) also provides that the estate of the person to be protected shall reimburse the conservator for bond premiums and court costs. Id.
“We find the facts of this case to be closely analogous to the facts presented in In re C.H., 723 So.2d 1277 (Ala.Civ.App.1998). In that case, the probate court entered a judgment adjudicating a minor to be dependent, transferring custody of the minor to the Department of Mental Health and Mental Retardation and taxing the [guardian ad litem] fee against the Department. On appeal, this court held that the probate court had no legal basis for taxing the [guardian ad litem] fee against the Department, noting that the applicable statute, § 15-12-21(e), Ala.Code 1975, provides a procedure for the [guardian ad litem] to follow to obtain payment and that the statute provides that the state treasurer pay the fee. In re C.H., 723 So.2d at 1279.
“We conclude that the probate court erred in directing DHR to pay the fees for the [guardian ad litem] and the conservator because § 26-2A-142(a) governs the payment of fees for a [guardian ad litem] and a conservator and also governs the reimbursement of court costs and bond premiums. As we have noted, that statute provides that those fees are properly paid from the estate of the person to be protected.”

Estate of Harris, 857 So.2d at 821-22.

Although § 26-2A-142 was amended in 2006 after the opinion in Estate of Harris was issued, we conclude that that amendment did not materially alter the reasoning of Estate of Harris as it applies to DHR’s obligation to pay Frye’s conservator’s or guardian’s fees in either case no. 2100403 or case no. 2100404. Subsection (c) provides only that, when the estate of the protected person is insufficient to provide reasonable compensation or to pay court costs as permitted in subsections (a) and (b), “the compensation of any guardian ad litem, court representative, or physician appointed by the court” may be taxed to the petitioner as additional costs. Frye did not serve as a guardian ad litem, a court representative, or a physician in either of the cases now before this court. Thus, the 2006 amendment has no bearing on the payment of Frye’s requested fees.

The 2006 amendment to § 26-2A-142, however, did authorize the trial court to tax the payment of a guardian ad litem’s fee to a petitioner when the assets of the estate are insufficient to pay those fees. Because the record in case no. 2100403 contains some indication that the assets of Wilkinson’s estate were insufficient to pay the guardian ad litem’s fee, the trial court was within its discretion in taxing $202.50 in fees to DHR, the petitioner. Thus, that aspect of the trial court’s judgment in case no. 2100403 must be affirmed.

The 2006 amendment to § 26-2A-142 also allows a trial court to tax “court costs” to the petitioner in the event the assets of the estate in a protective proceeding or in a guardianship proceeding are insufficient to pay them. The fees awarded to Frye, however, in case numbers 2100403 and 2100404 represented compensation for the time Frye had spent working on the matters to which he had been appointed. Compensation for an attorney’s time is not equivalent to costs. Cf., e.g., Ala.Code 1975, §§ 12-19-131 and 12-19-134 (allowing taxation of witness fees as costs); Ala.Code 1975, § 12-21-144 (allowing taxation of costs of depositions introduced into evidence at trial); Ex parte Strickland, 401 So.2d 33, 34-35 (Ala.1981) (allowing taxation of costs of depositions not used at trial); Lewis, Wilson, Lewis & Jones, Ltd. v. First Nat’l Bank, 435 So.2d 20, 23 (Ala.1983) (travel expenses, copying costs, and filing expenses may be taxed as costs); and Smith v. Smith, 482 So.2d 1172, 1175 (Ala.1985) (survey expenses may be taxed as costs).

We, therefore, conclude that the trial court exceeded its discretion in taxing Frye’s fees to DHR as “costs” in both case no. 2100403 and case no. 2100404. As conservator and guardian, Frye must seek payment of his fees from the estate of the protected person, i.e., the estates of Wilkinson and Harris. See Ala.Code 1975, § 26-2A-142(a) and § 26-2A-142(b).

We affirm that portion of the trial court’s judgment in case no. 2100403 ordering DHR to pay the guardian ad litem’s fee of $202.50; we, however, reverse that portion of the judgment in case no. 2100403 ordering DHR to pay Frye $6,706 as costs. We also reverse the trial court’s judgment in case no. 2100404, in which the trial court ordered DHR to pay Frye $5,740 as costs. The causes are remanded for further proceedings consistent with this opinion.

2100403 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

2100404 — REVERSED AND REMANDED.

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

THOMAS, J., concurs specially.

THOMAS, Judge,

concurring specially.

I concur fully in the main opinion. I write specially to point out the inequitable result created by the current state of the law regarding the compensation of conservators and guardians of incapacitated persons.

Section 26-2A-142(c), Ala.Code 1975, provides that

“if the assets of the estate in a protective proceeding or in a guardianship proceeding are not sufficient to provide reasonable compensation and pay court costs as permitted in subsections (a) and (b), the compensation of any guardian ad litem, court representative, or physician appointed by the court and court costs associated with the petition or motion may be taxed by the court with regard to any particular petition or motion presented to the court to the petitioner as additional costs to the petitioner.”

Conservators and guardians are notably absent from the list of persons in § 26-2A-142(c) whose compensation can be taxed to the petitioner when the assets of the estate of the protected person are insufficient to provide reasonable compensation. Thus, in a case such as this one, where the estate of the protected person is insufficient to compensate the guardian or conservator, the persons acting in those roles are left without any means of being compensated for their representation of the protected person. Such a result could act to discourage individuals from seeking or accepting the role of conservator or guardian, potentially leaving persons in need of protection without proper representation.

Accordingly, I urge the legislature to amend § 26-2A-142(c) to provide for the reasonable compensation of conservators and guardians to be taxed to the petitioner in cases where the estate of the protected person is insufficient, providing for their compensation in the same manner as the current statute provides for the compensation of guardians ad litem, court representatives, and physicians.

      . Upon motion of DHR, this court consolidated the two cases for purposes of appellate review. Frye has not favored this court with a brief in either appeal.

      . Although § 26-2A-142 was amended in 2006 after the opinion in Estate of Harris was issued, that amendment did not alter the substance of subsections (a) and (b) therein. The 2006 amendment, however, added subsection (c) to § 26-2A-142.


author: BRYAN, Judge.

text:
    Ex parte G.A. WEST & COMPANY. (In re G.A. West & Company v. Ricky McGhee).
    2100507.
    Court of Civil Appeals of Alabama.
    June 24, 2011.

      See also 58 So.3d 167.
    William E. Pipkin, Jr., of Austill, Lewis & Pipkin, P.C., Mobile, for petitioner.

      Richard E. Browning, Mobile, for respondent.
   BRYAN, Judge.

This is the second time these parties have been before this court. See G.A. West & Co. v. McGhee, 58 So.3d 167 (Ala.Civ.App.2010) (“G.A.West ”). In G.A. West, G.A. West & Company (“G.A. West”) appealed from the trial court’s judgment awarding Ricky McGhee permanent-total-disability benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. In that case, we reversed the trial court’s judgment insofar as it determined McGhee’s average weekly earnings to be $1,328.25, and we remanded the case; we affirmed the judgment in all other respects. 58 So.3d at 177. On remand to the trial court, McGhee sought to conduct discovery relevant to a determination of his average weekly earnings. G.A. West moved the trial court for a protective order preventing discovery from being conducted on remand. G.A. West contended that the trial court should determine McGhee’s average weekly earnings based only on the evidence that had been submitted at trial. The trial court entered an order denying G.A. West’s motion for a protective order. The trial court’s order permitted the parties to conduct discovery and stated that the trial court would hold an evidentiary hearing to determine McGhee’s average weekly earnings. G.A. West then petitioned this court for a writ of mandamus directing the trial court to vacate its order, to grant G.A. West’s protective order, and to determine McGhee’s average weekly earnings without receiving any additional evidence.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).

The issue in this case is whether the trial court may receive additional evidence on remand in determining McGhee’s average weekly earnings. In G.A. West, we discussed the issue of McGhee’s average weekly earnings:

“G.A. West ... argues that the trial court erred in determining McGhee’s average weekly earnings. Section 25-5-57(b), Ala. Code 1975, establishes methods for calculating an employee’s average weekly earnings. That section first provides:
“ ‘Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings shall be based on the wages, as defined in Section 25-5-1(6)[, Ala.Code 1975,] of the injured employee in the employment in which he or she was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by 52, but if the injured employee lost more than seven consecutive calendar days during the period, although not in the same week, then the earnings for the remainder of the period, although not in the same week, then the earnings for the remainder of the 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted.’
“Section 25-5-57(b) provides a second method for calculating average weekly earnings if an employee is injured after having worked for an employer for fewer than 52 weeks:
“ ‘Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained.’
“Section 25-5-57(b) also provides a third method for calculating average weekly earnings:
“ “Where by reason of the shortness of the time during which the employee has been in the employment of his or her employer or the casual nature or terms of the employment it is impracticable to compute the average weekly earnings as above defined, regard shall be had to the average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district.’
“This court has stated:
“ ‘[T]he employee has the burden of presenting evidence for computation of his average weekly wage. Cook Transports, Inc. v. Beavers, 528 So.2d 875 (Ala.Civ.App.1988).... [If] the formulas for determining average weekly earnings set out [in § 25-5-57(b) ] are impracticable to apply in a particular case so as to arrive at a just and fair result to both parties, much must be left to the sound judgment and judicial discretion of the trial court. Unexcelled Mfg. Corp. v. Ragland, 52 Ala.App. 57, 289 So.2d 626 (1974); Aluminum Workers Int'l v. Champion, 45 Ala.App. 570, 233 So.2d 511 (1970).’
“Stevison v. Qualified Pers., Inc., 571 So.2d 1178, 1180 (Ala.Civ.App.1990).
“At trial, McGhee, who had the burden of presenting evidence establishing his average weekly earnings, testified that he was hired by G.A. West to work on a project (‘the project’) involving the shutting down of a pulp mill. McGhee testified that he was not a regular employee of G.A. West. McGhee’s hourly wage was $16.50.... McGhee was injured during his second day of employment with G.A. West. A document admitted into evidence at trial indicated that McGhee was paid by G.A. West for working 10 hours daily for 2 days.
“Jason Ward, an iron worker who worked with McGhee for G.A. West, testified at trial. Ward testified that McGhee was injured during the beginning of the ‘pre-down’ phase of the project. Ward stated that the pre-down phase lasted approximately a month and that he worked 10 hours a day for 5 days a week during that period. Ward testified that the pre-down phase was followed by a ‘shutdown’ phase that lasted approximately a month. Ward stated that, during the shutdown phase, he worked 12 hours a day for 7 days a week.
“In its judgment, the trial court stated:
“ ‘[Section] 25-5-57(b) ... sets forth the manner in which the average weekly wage is to be calculated. However, none of the scenarios outlined in that statute fit the facts of this case because of the fact that Mr. McGhee was injured on the second day of the work, and after the project had only begun. Therefore, in keeping with the case of Slay Transportation Company, Inc. v. Miller, 702 So.2d 142 (Ala.Civ.App.1997), the court finds that the most equitable means of arriving at the appropriate average weekly wage is to use a combination of the wages paid to Mr. McGhee for the two days which he worked and the testimony from Mr. Ward documenting the wages he would have earned but for the injury. Under that analysis, the court hereby finds that Mr. McGhee’s average weekly wage on the date of his injury was $1,828.25-’
“Because McGhee had worked fewer than 52 weeks for G.A. West before his injury, the first method prescribed by § 25-5-57(b) is clearly inapplicable. Both McGhee and G.A. West contend that using the second method found in § 25-5-57(b) would be inequitable because McGhee worked for only two days for G.A. West. G.A. West argues that the trial court erred by not applying the third method found in § 25 — 5—57(b). McGhee argues that, because he was injured soon after beginning work on a specific project, it would be inequitable, in calculating McGhee’s average weekly earnings, to rely on the earnings of a welder/iron worker accumulated during the 52-week period immediately before McGhee’s injury.
“Our supreme court has discussed the application of the third method found in § 25 — 5—57(b):
“ ‘It must be noted that so much of the provision as deals with cases falling under [the third method] does not make it a hard and fast rule on the trial court to award the same wages or earnings as those earned by others there referred to. It simply requires that the court must have ‘regard’ to such average weekly earnings of others in making an award in the instant case, but does not mean that the amount fixed must be identical to the weekly earnings of the others. In other words, it must be regarded as an evidential, though not conclusive, factor, in the ascertainment of the award in hand, taking into consideration, of course, any physical differences such as the interruption or constancy in the respective employments.’
“Garrison v. Woodward Iron Co., 210 Ala. 45, 46, 97 So. 64, 64 (1928).
“In arguing that the third method should be applied, G.A. West focuses on a document purporting to show the earnings of an unnamed iron worker who had worked for G.A. West during the 52-week period preceding McGhee’s accident. The only indication on the document that the employee is an iron worker is the handwritten notation ‘Iron Worker’ at the top of the document. Like McGhee, the unnamed employee earned $16.50 per hour. The document indicates that the employee earned $37,759.67, or a weekly average of $726.15, during the 52-week period before McGhee’s accident.
“When counsel for G.A. West sought to admit the document at trial, counsel for McGhee objected, stating: T don’t think there’s been any proper foundation laid that he’s a similar employee [to McGhee]. I don’t know who this employee was. We don’t know what the job was....’ The trial court initially sustained the objection to the document. However, the trial court later admitted the document over the continued objection of McGhee’s counsel. When the trial court admitted the document, the trial court stated:
“ ‘I’m going to admit [the document] on the grounds of what you have just now raised[, i.e., to show the work activity at the mill,] but I’ll make it real clear, I’m admitting it, but I’ll be [the] gauger of the weight to give it.... I’m not going to give it very much weight because ... you just grabbed one employee out of the pot and it may be indicative of that to some extent, it may have some bearing on this, so it would be something that I would look at[.] [B]ut I’ll have to determine as I study it and think through and compare it to the other evidence as to how much weight I’m going to give it.’
“The third method prescribed by § 25-5-57(b) requires the trial court to ‘regard’ the average weekly earnings of an employee similarly situated to McGhee. The trial court, in computing McGhee’s average weekly earnings, indicated that it would consider the document showing the earnings of an employee purportedly similarly situated to McGhee. However, the trial court, concerned that that employee’s work may not accurately reflect the work that McGhee performed and would have performed for G.A. West, evidently assigned the document very limited weight. Under the third method found in § 25-5-57(b), although a trial court must consider evidence of the average weekly earnings of a similarly situated employee, that evidence is not conclusive. Garrison, 210 Ala. at 46, 97 So. at 64. As noted, a trial court may depart from the methods prescribed by § 25-5-57(b) if those methods fail to produce a just and fair result. Stevison, 571 So.2d at 1180. In such situations, much must be left to the discretion of the trial court in determining an employee’s average weekly earnings. Id. Given the facts of this case, the trial court did not err in deviating from the methods found in § 25-5-57(b) in determining McGhee’s average weekly earnings.
“Although the trial court did not err in deviating from the methods prescribed by § 25-5-57(b), we cannot affirm the trial court’s calculation of McGhee’s average weekly earnings. The amount determined by the trial court to be McGhee’s average weekly earnings — $1,328.25—appears to be an amount closer to McGhee’s maximum possible weekly earnings than his actual average weekly earnings.
“McGhee testified that he was hired by G.A. West to work on the project and that he was not a regular employee of G.A. West. McGhee further testified:
“‘Q. [By counsel for G.A. West:] ... [B]efore you went to work with G.A. West, it was your practice to work shutdowns for companies, right?
“ ‘A. Yes, sir. And we—
“ ‘Q. You’d work a few weeks here and few weeks there?
“ ‘A. Yes, sir.
“ ‘Q. And you had periods—
“‘A. Yes, sir.
“ ‘Q. —Prior to going to work for G.A. West where you were out of work for extended periods of time?
“‘A. Yes, sir.’
“The trial court calculated McGhee’s average weekly earnings to be $1,328.25. That amount indicates the average weekly wage that McGhee would have earned during the project, which lasted two months, had he not been injured. However, that amount does not appear to reflect the average weekly earnings that McGhee would have earned over the course of a year working as a welder and an iron worker. McGhee agreed that he was unemployed for ‘extended periods of time’ before working for G.A. West and that he would “work a few weeks here and few weeks there.’ He also acknowledged that he was hired by G.A. West specifically to work on the project. McGhee’s testimony suggesting that he was sporadically employed as a welder and an iron worker is inconsistent with the trial court’s determination that McGhee’s average weekly earnings are $1,828.25. That amount represents an average 67-hour work week — 40 regular hours and 27 overtime hours — at McGhee’s hourly wage of $16.50. The calculation of the average weekly earnings should determine the amount that the employee has lost due to the injury. See Ex parte Murray, 490 So.2d 1238, 1241 (Ala.1986). Although the trial court’s calculation of McGhee’s average weekly earnings accurately reflects the earnings that McGhee lost during the duration of the project, the record does not indicate that the trial court’s calculation accurately reflects the earnings that McGhee could be expected to lose over the course of an entire year. Accordingly, we must reverse that part of the judgment determining McGhee’s average weekly earnings.
‘We reverse the judgment of the trial court insofar as it determined McGhee’s average weekly earnings to be $1,328.25. In all other respects, we affirm the judgment of the trial court.”

58 So.3d at 170-77.

G.A. West argues that the trial court, in determining McGhee’s average weekly earnings on remand, may not receive additional evidence and may consider only the evidence that was submitted at trial. Conversely, McGhee argues that the trial court should receive additional evidence to properly determine McGhee’s average weekly earnings.

“ ‘ “It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered.... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence....’””

Ex parte Edwards, 727 So.2d 792, 794 (Ala.1998) (quoting Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983), quoting in turn 5 Am.Jur.2d Appeal and Error § 991 (1962)). Our supreme court has stated that “a trial court does not have the authority to reopen for additional testimony a case that has been remanded to it, except where expressly directed to do so.” Ex parte Queen, 959 So.2d 620, 622 (Ala.2006).

Although this court in G.A West did not expressly direct the trial court to receive additional evidence on remand, we now conclude that it is necessary for the trial court to receive additional evidence to properly determine McGhee’s average weekly earnings. Originally, the trial court determined McGhee’s average weekly earnings by using “ ‘a combination of the wages paid to Mr. McGhee for the two days which he worked and the testimony from Mr. Ward documenting the wages he would have earned but for the injury.’ ” G.A. West, 58 So.3d at 172. However, this court rejected that approach in G.A. West. The remaining evidence that may be used to determine McGhee’s average weekly earnings consists of the document indicating the earnings of an unnamed iron worker. However, as we noted in our previous opinion, “the trial court, concerned that [the unnamed iron worker’s] work may not accurately reflect the work that McGhee performed and would have performed for G.A. West, evidently assigned the document very limited weight.” 58 So.3d at 173. On remand, if the trial court is limited to considering only the evidence already submitted, then the trial court would seemingly be placed in the position of having to rely on the iron-worker document, which the trial court evidently gave very little weight. Accordingly, the trial court understandably permitted the parties to submit additional evidence on remand in an attempt to accurately determine McGhee’s average weekly earnings. Now that the issue of reopening the evidence is squarely before us, we acknowledge the usefulness of permitting the submission of additional evidence on remand in this ease.

We recognize that at trial McGhee had the burden of presenting evidence regarding the calculation of his average weekly earnings. G.A. West, 58 So.3d at 171 (citing Stevison v. Qualified Pers., Inc., 571 So.2d 1178, 1180 (Ala.Civ.App.1990)). However, the existence of such a burden does not preclude an appellate court from permitting a trial court to take additional evidence on remand. In Aldridge v. Dolbeer, 567 So.2d 1267 (Ala.1990), the plaintiffs sued the defendants, alleging breach of contract. Following a nonjury trial, the trial court entered a judgment in favor of the plaintiffs, awarding damages in the amount of $10,270. On appeal, our supreme court noted that the plaintiffs had the burden of producing evidence that would allow a fact-finder to calculate damages. 567 So.2d at 1270. The supreme court affirmed the trial court’s judgment insofar as it determined liability, but it reversed the judgment with respect to the amount of damages. The court in Al-dridge determined that the evidence submitted did not support the amount of damages awarded. Id. Therefore, the court reversed that portion of the judgment awarding damages and remanded the case “for an evidentiary hearing to determine an amount that would be sufficient to restore the [plaintiffs] to the position they would have occupied had the breach not occurred.” Id. See also Lolley v. Citizens Bank, 494 So.2d 19 (Ala.1986) (reversing a judgment and remanding the case to the trial court to conduct an evidentiary hearing for the determination of attorney’s fees considering specific guidelines).

Similar to an award of damages for a breach of contract, a calculation of an injured employee’s average weekly earnings should reflect the amount that the employee has lost due to the injury. See International Paper Co. v. Murray, 490 So.2d 1238, 1241 (Ala.1986). An accurate calculation of an employee’s average weekly earnings is essential to a fair award of workers’ compensation. Due to the limited evidence in the record, additional evidence is necessary to ensure an accurate computation of McGhee’s average weekly earnings.

This case does not present an example of a party seeking to submit evidence on remand in what may be perceived as an attempt to undermine an appellate court’s mandate. For example, in Alabama Power Company v. Smith, 409 So.2d 760 (Ala.1981), our supreme court reversed a judgment for the plaintiffs in a negligence action, concluding that the defendant did not owe a duty to the plaintiffs. The supreme court remanded the case for the trial court to enter a judgment in accordance with the supreme court’s opinion. Id. at 764. On remand, the plaintiffs filed a motion for a new trial. The defendant subsequently petitioned the supreme court for a writ of mandamus directing the trial court to enter a judgment in the defendant’s favor. Ex parte Alabama Power Co., 431 So.2d 151 (Ala.1983). On mandamus review, the supreme court determined that the issue of duty, an essential element of the plaintiffs’ negligence claim, had already been conclusively decided in favor of the defendant; therefore, a new trial was unnecessary. 431 So.2d at 154-55. Thus, the supreme court concluded that the trial court should enter a judgment in the defendant’s favor. Id. at 155.

In Ex parte Alabama Power, the plaintiffs sought another opportunity on remand to establish the liability of the defendant. The present case is more like Aldridge in that the only issue remaining for the trial court to determine is McGhee’s average weekly earnings, a computation analogous to the award of damages in Aldridge. Given the evidence in the record, it appears that the submission of additional evidence will likely yield a more accurate calculation of McGhee’s average weekly earnings. Thus, the trial court’s order permitting the submission of additional evidence was consistent with our opinion in G.A. West, in which we reversed the trial court’s initial calculation of average weekly earnings while noting the relatively meager evidence on that subject.

Accordingly, we take this opportunity to state that the trial court may receive additional evidence on remand regarding the issue of McGhee’s average weekly earnings. The computation of the average weekly earnings should be consistent with the discussion on that issue in G.A. West. We deny G.A. West’s petition for a writ of mandamus seeking to prevent discovery and the submission of additional evidence on remand.

PETITION DENIED.

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

MOORE, J., recuses himself.


author: THOMAS, Judge.

text:
    S.D. v. J.S.F.
    2100440.
    Court of Civil Appeals of Alabama.
    June 30, 2011.
    Jayme K. Amberson, Anniston, for appellant.
    Wendy Ghee Draper of Ghee & Draper, Anniston, for appellee.
   THOMAS, Judge.

S.D. (“the mother”) appeals from a judgment of the Calhoun Juvenile Court determining that J.S.F. is the father of J.T. (“the child”), awarding custody of the child to J.S.F., and ordering the child’s surname changed to that of J.S.F. We affirm.

At the time of the child’s birth, the mother was involved in a relationship with E.C.T.; the mother and E.C.T. were not married. E.C.T. signed an affidavit of paternity when the child was born, asserting that he was the child’s father. On April 15, 2010, the Department of Human Resources (“DHR”) filed a petition in the juvenile court alleging that the child was dependent. J.S.F. intervened in the dependency action, alleging that he was the biological father of the child. On July 12, 2010, the juvenile court held a hearing on DHR’s petition and, on the same date, entered an order adjudicating the child dependent and awarding custody of the child to DHR.

At the hearing on its petition, DHR moved the juvenile court to dismiss J.S.F. as a party to the action, arguing that the affidavit of paternity signed by E.C.T. precluded J.S.F. from challenging E.C.T.’s paternity of the child. At the same hearing, J.S.F. moved the juvenile court to order genetic testing to determine the paternity of the child. The juvenile court entered an order denying DHR’s motion to dismiss J.S.F. as a party and granting J.S.F.’s motion for genetic testing on July 13, 2010.

On July 19, 2010, DHR filed a motion for partial summary judgment, again arguing that, based on E.C.T.’s affidavit of paternity, E.C.T. was the child’s presumed father and that J.S.F. was precluded from challenging E.C.T.’s paternity of the child. The child’s guardian ad litem, who had been appointed by the juvenile court as part of the dependency action, filed a motion in opposition to DHR’s motion for a partial summary judgment. In his motion in opposition, the guardian ad litem argued that the results of the genetic testing had shown that J.S.F., not E.C.T., was the biological father of the child. The guardian ad litem also argued that the testimony at the July 12, 2010, hearing showed that the mother and E.C.T. knew that the affidavit of paternity was untrue at the time it was signed and that, accordingly, it should be set aside. The juvenile court denied DHR’s motion for a partial summary judgment.

On September 10, 2010, J.S.F. moved the juvenile court to adjudicate him as the child’s father, to award him custody of the child, and to order the child’s surname changed to that of J.S.F. On November 1, 2010, E.C.T. executed an affidavit acknowledging that he is not the child’s biological father and repudiating his paternity of the child. The juvenile court held a hearing, and, on December 28, 2010, it entered a judgment acknowledging E.C.T.’s repudiation of paternity, adjudicating J.S.F. as the father of the child, awarding custody of the child to J.S.F., and ordering the child’s surname changed to that of J.S.F.

The mother filed a postjudgment motion, arguing, among other things, that the juvenile court did not have jurisdiction to order a change in the child’s surname. The mother’s postjudgment motion was denied by operation of law, and the mother timely appealed to this court.

The mother argues on appeal that the juvenile court lacked subject-matter jurisdiction to order the child’s surname changed. Specifically, the mother argues that the probate court has exclusive jurisdiction to order a change in a child’s name. In support of her argument, the mother cites § 26-11-3, Ala.Code 1975, and this court’s decision in T.L.H. v. R.A.R., 977 So.2d 482 (Ala.Civ.App.2007). Section 26-ll-3(a) provides that

“[t]he father may petition at the time of filing the declaration of legitimation or at any time subsequent to the determination of legitimation to change the name of such child, stating in his declaration the name it is then known by and the name he wishes it afterwards to have. Such petition shall be filed in the office of the judge of probate of the father’s residence or the child’s residence.”

(Emphasis added.) In T.L.H., 977 So.2d at 486-87, this court, citing § 26-11-3, held that the probate court had exclusive jurisdiction to order a change to a child’s surname. In deciding T.L.H., we stated that our review of the statutes and caselaw revealed none that granted the juvenile court the authority to change a child’s surname. Id. at 487.

On January 1, 2009, after our decision in T.L.H., Act No. 2008-376, Ala. Acts 2008, became effective. Among the changes to statutes made by Act No. 2008-376, § 26-17-636, Ala.Code 1975, was added to the Alabama Uniform Parentage Act. Section 26-17-636(e) provides that, in an action to adjudicate paternity, “[o]n request of a party and for good cause shown, the court may order that the name of the child be changed.” Actions to establish paternity are within the original jurisdiction of the juvenile court. See § 12 — 15—115(a)(6), Ala. Code 1975 (stating that the juvenile court has original jurisdiction over “[proceedings to establish paternity or maternity of a child pursuant to the Alabama Uniform Parentage Act, Chapter 17 of Title 26”). Section 26-17-636(e) expressly grants the juvenile court authority to order the child’s name changed while it is exercising its jurisdiction over an action to adjudicate the paternity of that child.

In this case, the juvenile court was exercising its jurisdiction over J.S.F.’s motion to establish his paternity of the child when it entered its judgment that, in part, ordered a change in the child’s surname. Thus, pursuant to § 26-17-636(e), the juvenile court had subject-matter jurisdiction to order the child’s surname changed to that of J.S.F. We therefore affirm the judgment of the juvenile court.

AFFIRMED.

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

      . Rule 1(B), Ala. R. Juv. P., provides that a postjudgment motion in a juvenile case must be filed within 14 days of the entry of the judgment. The mother’s postjudgment motion in this case was filed on January 12, 2011- — 15 days after the entry of the judgment of the juvenile court. However, the office of the clerk was closed on January 11, 2011, due to inclement weather. Rule 6(a), Ala. R. Civ. P., provides that when the last day to make a filing in a court falls on "a day on which weather or other conditions have made the office of the clerk of the court inaccessible, ... the period runs until the end of the next day that is not one of the aforementioned days.” The mother filed her postjudgment motion on the next day that the office of the clerk was accessible; therefore, her post-judgment motion was timely filed.

      . The mother does not present any argument on appeal as to whether the evidence before the trial court was sufficient to support its finding that the child’s surname should be changed to that of J.S.F. Therefore, the mother has waived any argument on appeal concerning that issue. See Pardue v. Potter, 632 So.2d 470, 473 (Ala.1994) (“Issues not argued in the appellant's brief are waived.”).


author: THOMPSON, Presiding Judge.

text:
    SOUTHERN ENERGY DEVELOPMENT COMPANY, INC., and Roy Dobbins v. Larry CRANE.
    2100292.
    Court of Civil Appeals of Alabama.
    June 30, 2011.
    Abbey Herrin, Birmingham, for appellants.
    John R. Anderson and Joseph W. Dickson of Grant, Konvalinka & Harrison, P.C., Chattanooga, Tennessee; and William W. Talley of Talley & Talley, Scottsboro, for appellee.
   THOMPSON, Presiding Judge.

Southern Energy Development Company, Inc. (“SEDCO”), and Roy Dobbins (“Dobbins”) (collectively “the defendants”) appeal from a summary judgment entered by the Jackson Circuit Court. For the reasons set forth herein, we dismiss the appeal.

On March 25, 1994, Larry Crane, David Crane, and SEDCO entered into a partnership agreement (“the partnership agreement”). The partnership formed was known as “C & S,” and its purpose was to engage in “the general business of mining coal.” The partnership agreement included the following provision:

“The partners agree that Larry D. Crane and David L. Crane shall acquire real estate in the Bridgeport, Stevenson, and Flat Rock quadrangles and when water samples from said property are deemed acceptable by independent consulting laboratories then Larry D. Crane and David L. Crane shall convey an undivided one-half interest in said property to SEDCO. In exchange therefore, SEDCO will enter into subcontracts to mine said coal. The partners agree that SEDCO will have the exclusive rights to mine all said coal on said property in said quadrangles provided it is commercially feasible to mine and market said coal. Any and all royalties derived from the sale of said coal shall be divided as follows: [one-half] to Larry D. Crane and David L. Crane and [one-half] to SEDCO. Any other profits, timber proceeds or proceeds of any nature derived from said property shall be divided as follows: [one-half] to Larry D. Crane and David L. Crane and [one-half] to SEDCO. If for any reason beyond the control of the partners, including but not limited to regulatory permit problems or commercial unfeasibility to mine and market said coal then and in that event this agreement shall be cancelled and held for naught and all real estate rights shall revert to Larry D. Crane and David L. Crane.”

On October 27, 2000, Larry Crane (“Crane”) filed an action against the defendants. Crane alleged that he had attempted to have certain of his real property (“the disputed property”) auctioned but that, before the auction could be held, the defendants caused the auction to be suspended by contacting the auction company and claiming to have rights in the disputed property pursuant to the partnership agreement. Crane sought a judgment declaring that the defendants had no right, title, or interest in the disputed property.

SEDCO filed a counterclaim against Crane in which it alleged that it had obtained acceptable water-sample results from the disputed property, as required by the partnership agreement, but that Crane had failed to convey a one-half interest in the disputed property to SEDCO. SED-CO stated that it offered to fulfill its obligation to mine coal on the disputed property upon the conveyance of the one-half interest in the property as called for in the partnership agreement, and it sought a judgment requiring specific performance of the partnership agreement. In a second count, SEDCO alleged that Crane had breached the partnership agreement, and it demanded an award of $1,000,000 against him.

On March 17, 2005, SEDCO filed a motion to add North Alabama Mineral Development Company, Inc. (“NAMDC”), to the action as a third-party defendant, and the trial court granted that motion. In its third-party complaint against NAMDC, SEDCO alleged that there was a large deposit of previously mined coal (“the gob pile”) on the disputed property. SEDCO alleged that it and NAMDC each claimed an ownership interest in the gob pile, and, as a result, SEDCO sought a declaration of each party’s rights in the gob pile.

On June 9, 2006, Crane filed a pleading in which he alleged that he was the owner of the property on which the gob pile had been placed. He asserted a claim against the defendants and NAMDC for accrued rent for the maintenance of the gob pile on his property.

NAMDC filed a counterclaim against the defendants and Crane in which it sought a declaration that it was the owner of the gob pile and that it did not owe rent to Crane. It also sought a judgment against Crane and the defendants for unjust enrichment caused by their assertion of rights over the gob pile. It asserted a claim of common-law detinue and sought an award of possession of the coal and other minerals contained in the gob pile or the value of the gob pile. It sought the imposition of a constructive trust over the coal and other minerals contained in the gob pile. NAMDC asserted that the other parties’ actions had resulted in a cloud on its title, and it requested an award of compensatory and punitive damages. Finally, it requested an award of attorney’s fees against the other parties pursuant to the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala.Code 1975.

On February 3, 2010, Crane filed a motion for a summary judgment. He asserted that Dobbins had been barred by the Alabama Surface Mining Commission (“the Commission”) since 1985 from securing a mining permit because of certain mining violations, and he asserted that the Commission had never licensed SEDCO to mine coal. Crane argued that, because of those regulatory permitting problems, existing before the parties had even executed the partnership agreement, SEDCO was unable to perform under the partnership agreement and, as a result, that the partnership agreement was due to be rescinded, with title to the disputed property remaining in Crane.

The defendants filed multiple responses to Crane’s summary-judgment motion in which, among other things, they argued that Crane had failed to submit evidence that the defendants could not obtain the necessary permits and licenses. They also argued that whether the defendants could obtain the necessary licenses or permits was irrelevant because the partnership agreement did not require them to do so. Instead, according to the defendants, the partnership agreement specifically contemplated that SEDCO would enter into subcontracts with third parties to perform the mining on the property, and it was those third parties that would be responsible for obtaining the necessary licenses and permits.

On July 28, 2010, the trial court granted Crane’s motion and entered a summary judgment in his favor. The trial court found that the partnership agreement required SEDCO to secure all the appropriate licenses and permits to begin mining the coal on the disputed property; that Dobbins, who it stated had been an officer of SEDCO at the time the partnership agreement was executed, had been prohibited from obtaining a license or permit from the Commission to mine coal; and that the Commission had never licensed SEDCO to mine coal. The trial court concluded that because the defendants were unable to secure licenses and permits from the Commission, they could not perform their obligations under the terms of the partnership agreement, and, as a result, the trial court held that the partnership agreement was due to be rescinded.

Although Crane’s summary-judgment motion was directed only to the claims between the defendants and him, the trial court’s order granting Crane’s motion ordered that “any and all remaining claims and/or causes of action asserted by any of the parties in this litigation and which are currently pending before this Court as part of this litigation are hereby dismissed with prejudice.” Thus, the trial court’s summary judgment in favor of Crane appeared to dispose of all the claims asserted by all the parties, including those asserted by and against third-party defendant NAMDC.

The defendants filed a motion to alter, amend, or vacate the summary judgment. The transcript of the hearing on that motion reflects that the trial court intended the July 28, 2010, summary judgment to apply only to the claims between the defendants and Crane, not to the claims pertaining to NAMDC. In addition, the trial court’s order denying the defendants’ motion certified the July 28, 2010, summary judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., a procedural step that would have been unnecessary if the summary judgment had disposed of all the claims of the parties.

The defendants filed an appeal to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. Because the record was unclear as to whether the trial court, by its summary judgment, intended to enter a final judgment as to all the claims of all the parties or, instead, to enter a final judgment as to only those claims pending between the defendants and Crane, this court reinvested the trial court with jurisdiction to enter an order clarifying its intention with regard to the July 28, 2010, summary judgment. Subsequently, the trial court entered an order clarifying that its summary judgment applied only to the claims between the defendants and Crane. Thus, the claims by and against NAMDC remain pending in the trial court.

On appeal, the defendants raise several arguments; however, we cannot reach those arguments. Instead, we are constrained to dismiss the appeal for lack of appellate jurisdiction because it was taken from a nonfinal judgment.

Although none of the parties has raised an issue with regard to this court’s jurisdiction over the appeal, this court is required to consider its jurisdiction ex mero motu. In BB & S General Contractors, Inc. v. Thornton & Associates, Inc., 979 So.2d 121, 128-25 (Ala.Civ.App.2007), this court provided a detailed discussion of Rule 54(b), Ala. R. Civ. P., and the appropriateness of its application in various circumstances:

“Rule 54(b), Ala. R. Civ. P., allows a trial court, in appropriate instances, to ‘direct the entry of a final judgment as to one or more but fewer than all of the claims or parties.’ With regard to subsection (b), the Committee Comments on 1973 Adoption to Rule 54 provide, in pertinent part:
“ ‘This subdivision regulates the relation of that joinder to the usual requirement, in Alabama as elsewhere, that appeal must be only from a final judgment, save in unusual circumstances. See Code of Ala., Tit. 7, § 754. In general the rule adopts equity practice of a “split judgment.” See Equity Rule 69. The rule provides that, in the absence of affirmative action by the judge, no decision is final until the entire case has been adjudicated. The one exception is that where the court has completely disposed of one of a number of claims, or one of multiple parties, and has made an express determination that there is no just reason for delay, the court may direct the entry of judgment on that claim or as to that party. The judgment so entered is a final judgment in all respects, and may be appealed.... ’
“In some instances, a Rule 54(b) certification may not be appropriate. When pending claims ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results,” ’ our courts may determine a Rule 54(b) certification to be invalid. Gray v. Central Bank of Tuscaloosa, N.A., 519 So.2d 477, 479 (Ala.1987) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)). See also Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88 (Ala.2002) (setting aside a Rule 54(b) certification and dismissing the appeal as being from a nonfinal judgment when the trial court considered breach-of-contract claims without considering the counterclaim alleging fraud). The mere fact that claims ‘may have arisen out of the same set of facts does not prevent them from being multiple claims.’ Pate v. Merchants Nat’l Bank of Mobile, 409 So.2d 797, 799 (Ala.1982) (citing Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975)).”

BB & S General Contractors, Inc., 979 So.2d at 123-24.

In the present case, the claims by and against NAMDC remain pending. One of the issues on which the resolution of those claims rests is the proper ownership of the disputed property. For example, SEDCO’s pending claim against NAMDC for a declaratory judgment, as well as NAMDC’s pending counterclaim against SEDCO for a declaratory judgment, both seek a determination as to the proper ownership of the gob pile, with SEDCO’s claim to the gob pile premised on its contention that it owns an interest in the disputed property by virtue of the partnership agreement. Ownership of the disputed property is also at the heart of the claims between Crane and the defendants that the trial court resolved in its summary judgment. Indeed, the depth of the intertwining between the adjudicated claims and the pending claims is illustrated by the following exchange between the attorney for NAMDC and the trial judge at the hearing on the defendants’ motion to alter, amend, or vacate, the summary judgment:

“THE COURT: All right. Anything further?
“MR. STEAKLEY [ (counsel for NAMDC) ]: Not that is pending before the Court, your Honor, but just to alert the Court, in light of the Court’s ruling and depending on how the Court mies on the motion for reconsideration, there is a cross-claim pending against my client, [NAMDC], that is based solely upon an interest they are claiming through a contract. So we will be coming back to the Court ultimately, de pending on the Court s ruling here, asking for summary judgment on that cross-claim.
“THE COURT: That’s what I was going to ask, is what is your understanding of that part of the litigation at this point? You tell me you’ll file something.
“MR. STEAKLEY: Yes, sir. In fact, the only possible right that SEDCO could claim is based on that contract. They claim an interest in certain of the minerals that are on that property and their interest is clamed through the contract. And I — obviously if summary judgment is granted there, it would be appropriate with respect to our aspect of it as well.
“THE COURT: All right. We’ll deal with that on another day.
“MR. STEAKLEY: Yes, sir.”

(Emphasis added.)

Because the claims between Crane and the defendants are so closely intertwined with the claims by and against NAMDC that separate adjudication poses an unreasonable risk of inconsistent results, we conclude that the trial court erred when it certified the summary judgment as a final judgment pursuant to Rule 54(b). See BB & S General Contractors, Inc., supra. Without the trial court’s certification, there is no final judgment over which this court can exercise appellate jurisdiction, and, as a result, the appeal is due to be and is hereby dismissed. See id.

APPEAL DISMISSED.

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

      . Because David Crane played only a minimal role in the litigation, see note 3, infra, the name "Crane,” when used hereinafter in this opinion, refers to Larry Crane.

      . Dobbins, one of the defendants, had served as a director of SEDCO and was one of the signatories to the partnership agreement. In its summary-judgment order, the trial court stated that Dobbins was an officer of SEDCO at the time the partnership agreement was executed.

      .SEDCO added David Crane as a third-party defendant to the action, and, in its third-party complaint, it made the same allegations and demanded the same relief against David Crane as it had in its counterclaim against Larry Crane. Later, the parties stipulated to the dismissal of David Crane from the action on the basis that David Crane had conveyed all of his interest in the disputed property to Larry Crane.

      . As part of their motion, the defendants requested leave of the trial court to amend their counterclaim to assert a claim of unjust enrichment against Crane. The trial court denied that request.

      . Specifically, the trial court's order denying the motion to alter, amend, or vacate the summary judgment provides, in part: "The Motion to Alter, Amend or Vacate is due to be, and it is hereby, DENIED. This denial of the order granting summary judgment entered by this court on July 28, 2010, is hereby made final and appealable pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure, in that the court finds no just reason for delay.” We interpret this statement as intending to certify the July 28, 2010, summary judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., because the summary judgment is the only order of the trial court that actually disposes of any of the parties’ claims and is therefore the only order capable of certification as a final judgment. Furthermore, the order denying the motion to alter, amend, or vacate the judgment directly references the summary judgment in purporting to enter a certification of finality.

      . We note that, as part of their appeal, the defendants contend that the trial court erred in denying their motion to amend their complaint. Because there is no final judgment over which this court can exercise jurisdiction, we cannot consider that aspect of the defendants' appeal.


text:
    Michael NELSON v. Bobbie ROBINSON.
    2100268.
    Court of Civil Appeals of Alabama.
    June 30, 2011.

      William R. Stokes, Jr., and William D. Stokes of Stokes & Stokes, P.C., Brewton, for appellant.
   THOMPSON, Presiding Judge.

Michael Nelson (“the father”) appeals from a judgment ordering him to pay half of the parties’ child’s postminority educational expenses. Bobbie Robinson (“the mother”) was ordered to pay the other half of the child’s postminority educational expenses.

The record indicates the following. On May 6, 2010, the mother filed a petition for modification of the father’s child-support obligation, seeking postminority educational support on behalf of the parties’ child, who graduated from high school that spring. The child reached the age of majority on June 2, 2010. On June 23, 2010, a hearing was held on the petition. At the outset of the hearing, the trial court asked the parties whether they believed the child had the ability and desire to go to college, and both parties agreed the child possessed the requisite ability and desire. The trial court also asked the father whether, if the parties had remained married, they would have “supported [the child] or helped her with college expenses?” The father said he would have assisted with those expenses. The trial court found that the mother had met the burden under Ex parte Bayliss, 550 So.2d 986 (Ala.1989), discussed later in this opinion, to allow the child to receive postminority educational support.

At that point, the father’s attorney noted that the father had not yet presented any evidence. The father testified that he is a construction worker and that his gross monthly income is $8,841.76. He said that he has monthly expenses of $8,858.70, including the payment on his mobile home and its furnishings, which he valued at $70,000. Including the mobile home, two older model vehicles, and his retirement account, the father estimated the total amount of his assets at $95,500. However, the father also presented evidence indicating that he owed $62,000 on the mobile home and $6,000 on one of the vehicles. He also owed $4,600 in credit-card debt, $3,600 in medical bills, and $2,000 to his retirement account. The father presented evidence of total debt of $78,200.

The father said that he could not afford to pay for the child’s college education but that he was willing to continue to provide health-insurance coverage for her. He also said that he was willing to do what he could to assist the child with other expenses.

The mother, who appeared pro se at trial, is a school-bus driver. She said that the child planned to live at home and attend Alabama Southern Community College (“ASCC”) in Monroeville. At the time of the June hearing, however, the child had not yet been notified that she had been accepted for the fall term at ASCC. The trial court continued the hearing until August 11, 2010, at which time the parties were to present evidence of the child’s anticipated college expenses. On June 25, 2010, the trial court entered an order that, among other things, found that the child had the desire and ability to attend college and that the parties would have assisted the child with college expenses had they remained married.

At the August 11 hearing, the parties stipulated that the child had been accepted at ASCC. A letter from ASCC was submitted into evidence indicating that the child’s estimated tuition and fees for the fall term were $1,308. The letter also stated that the child had been awarded a Pell Grant of $2,775 for the term. The mother testified that the child’s books had cost $517 for the term.

The mother testified that her gross monthly income is $1,448. She said that she had been a school-bus driver for 11 or 12 years and that she had no other job. However, she said, she had a certified-nursing-assistant license and a commercial driver’s license (“CDL”) that would allow her to drive “18-wheeler” trucks, but, she said, she had not made use of the CDL because when she earned the CDL, the child was small.

On September 21, 2010, the trial court entered a judgment incorporating the findings it made after the June hearing and ordering the mother and the father to each be responsible for half of the child’s actual college expenses after scholarships and grants. The judgment stated that actual expenses included expenses for room, board, tuition, fees, and books. Because the child was going to continue to live at home with the mother, the trial court ordered the father to pay the mother half “of the average room and board costs listed on the web-sites of the University of Alabama and Auburn University.” The father timely appealed.

The father contends that the evidence did not support the trial court’s award of postminority educational support for the child. Specifically, the father argues that the trial court erred in basing the costs of room and board on the cost incurred for a student attending Auburn University (“Auburn”) or the University of Alabama (“Alabama”) and not on what the child’s actual expenses for room and board will be. He also asserts that the mother failed to present evidence as to what those actual costs will be for the child while she is attending ASCC. In addition, the father asserts that the award subjects him to undue hardship.

Our standard of review in this case is as follows:

“ ‘When a trial court hears ore ten-us evidence, its judgment based on facts found from that evidence will not be disturbed on appeal unless the judgment is not supported by the evidence and is plainly and palpably wrong. Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). Further, matters of child support are within the sound discretion of the trial court and will not be disturbed absent evidence of an abuse of discretion or evidence that the judgment is plainly and palpably wrong. Id.
“Spencer v. Spencer, 812 So.2d 1284, 1286 (Ala.Civ.App.2001).”

Taylor v. Taylor, 991 So.2d 228, 232 (Ala.Civ.App.2008). Generally, the decision whether to award postminority educational support is within the discretion of the trial court based on its consideration of the factors set out in Ex parte Bayliss, supra. Gabel v. Lores, 608 So.2d 1365, 1366 (Ala.Civ.App.1992). When the evidence regarding those factors is in conflict, the trial court’s factual findings are presumed correct. Abernathy v. Sullivan, 676 So.2d 939, 941 (Ala.Civ.App.1996). However, the trial court’s legal conclusions and its application of the law to the facts are not clothed with such a presumption; review of those matters is de novo. Henderson v. Henderson, 978 So.2d 36, 39 (Ala.Civ.App.2007).

“The Supreme Court of Alabama set out certain factors for the trial court to consider when ruling on a petition for postminority [educational] support. See Ex parte Bayliss, 550 So.2d 986 (Ala.1989). Bayliss clearly specifies those factors that shall, and those that may, be considered by the trial court when it is deciding whether to order support for postminority college education. In an award of postminority educational support for a child of divorced parents, the trial court ‘ “shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.” ’ A.L. v. B.W., 735 So.2d 1237, 1239 (Ala.Civ.App.1999); Thompson v. Thompson, 689 So.2d 885, 887 (Ala.Civ.App.1997) (quoting Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989)). The court suggested that trial courts also should consider ‘the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.’ Id. at 987. The trial court must also determine if the noncustodial parent has ‘sufficient estate, earning capacity, or income to provide financial assistance without undue hardship.’ Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). Undue hardship does not imply the absence of personal sacrifice, because many parents sacrifice to send their children to college. Id.”

Penney v. Penney, 785 So.2d 376, 378-79 (Ala.Civ.App.2000).

This court has held that “ ‘[i]n child support cases the trial court is bound by the legal evidence or lack of it,’ and ‘[i]t may not speculate on the ability of the parties to pay nor on the needs of the children.’ ” Thomas v. Campbell, 960 So.2d 694, 701 (Ala.Civ.App.2006) (quoting Berry v. Berry, 579 So.2d 654, 656 (Ala.Civ.App.1991)). In Taylor, 991 So.2d at 235, a case in which a father challenged the award of postminority educational support, this court remanded the cause for the trial court to “ascertain and declare the child’s postminority educational expenses, including expenses for tuition and fees,” and to determine the financial ability of the father to pay half of those “actual expenses.” In a footnote to that opinion, this court stated that, “[bjecause the child [would] be living with the mother while attending [community college], the trial court need not consider the costs of room and board.” Taylor, 991 So.2d at 235 n. 1.

In this case, the undisputed evidence indicated that the child intended to live with the mother while she attended ASCC. There was no evidence presented as to what the child’s living expenses might be. Nevertheless, the trial court ordered the father to pay the mother half of the room-and-board costs of a student attending Auburn or Alabama, as those costs are listed on each university’s respective Web site. There is absolutely no evidence in the record to support a finding that the child’s expenses while living at the mother’s home will equal the cost of room and board as stated on those Web sites. Therefore, that portion of the trial court’s judgment ordering the father to pay the mother half of the cost of the room-and-board expenses of a student attending Auburn or Alabama is plainly and palpably wrong and is due to be reversed.

The father also contends that the judgment ordering him to pay half of the child’s college expenses subjects him to undue hardship. The trial court’s judgment specifies that the mother and the father are each to be responsible for half of the child’s actual expenses “after scholarships and grants.” The evidence submitted at the August 11, 2010, hearing indicates that the child’s tuition and books for the fall term totaled $1,825. The evidence also indicates that the child had received a Pell Grant of $2,775 for the term. Therefore, after tuition and books were paid for, the child had a surplus of $950 for the term. As discussed, the record does not include evidence of any other actual expenses the child will incur. Because no other postminority educational expenses were proven at trial, there are no other expenses for which the father could possibly be made responsible. Accordingly, after the provision ordering the father to pay to the mother an amount for room and board equivalent to half of the cost of room and board at Auburn or Alabama is removed from the judgment, as previously discussed, we conclude that, based on the record before us, the father will not suffer undue hardship under the remaining provisions of the judgment. Because of this holding, we pretermit discussion of the father’s argument that the record includes insufficient evidence of the mother’s financial resources.

For the reasons set forth above, we reverse that portion of the judgment ordering the father to pay an amount for room and board equivalent to half of the cost of room and board at Auburn or Alabama. The remainder of the judgment is affirmed. This cause is remanded for the trial court to enter a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Although the record did not contain the costs of room and board at Auburn and Alabama and although the trial court did not include those specific amounts in the judgment, we note that Auburn's Web site indicates that the cost of room and board for an undergraduate student who is an Alabama resident will be $9,992 for the 2011-2012 academic year. http://www.aubum.edu/ administration/business-office/finaid /pdf/ cost.pdf (visited on June 28, 2011). Alabama’s Web site indicates that the cost of room and board for an undergraduate student was $10,206 for the 2010-2011 academic year, http://financialaid.ua.edu/faq/costs.html (visited on June 28, 2011). A copy of these materials printed from the Web sites is in the case file of the clerk of the Alabama Court of Civil Appeals.