author: MOORE, Judge. THOMAS, Judge, THOMPSON, Presiding Judge,

text:
    ALABAMA DEPARTMENT OF MENTAL HEALTH v. E.C.J.
    2100682.
    Court of Civil Appeals of Alabama.
    Nov. 10, 2011.

      Luther Strange, atty. gen., and David W. Huddleston, asst. atty. gen., Alabama Department of Mental Health, Bryce Hospital Legal Office, Tuscaloosa, for appellant.
    Submitted on appellant’s brief only.
    James A. Tucker, Alabama Disabilities Advocacy Program, Tuscaloosa, for amicus curiae Alabama Disabilities Advocacy Program, in support of the appellant.
   MOORE, Judge.

The Alabama Department of Mental Health (“the department”) appeals from a judgment of the Limestone Juvenile Court (“the juvenile court”) ordering that the legal and physical custody of E.C.J. remain with the department and further ordering that the juvenile court was retaining jurisdiction over E.C.J., pursuant to § 12-15-412, Ala.Code 1975. We dismiss the appeal.

Procedural History

On July 10, 2009, the juvenile court entered a judgment committing E.C.J., whose date of birth is February 6, 1992, and who was a minor at the time, to the custody of the department. Thereafter, the department placed E.C.J. at the William D. Partlow Developmental Center (“Partlow”). On February 1, 2011, the guardian ad litem for E.C.J. filed a “Motion for Immediate Review” alleging:

“1. That the undersigned has just been informed that the current juvenile commitment of [E.C.J.] at Partlow will expire on February 6, 2011.
“2. To the best of the undersigned’s knowledge, contingency plans for this event have not been finalized.”

On February 4, 2011, the department filed a “Notice of Expiration of Juvenile Court Involuntary Mental Commitment to the Alabama Department of Mental Health Pursuant to § 12-15-409 & § 12-15-410, Ala.Code 1975.” Citing §§ 12-15-115(c), 12-15-412, and 12-15-102(1), (3), and (18), the department asserted that the juvenile court’s commitment order would expire on February 6, 2011, upon E.C.J.’s reaching the age of majority. The department further asserted that it had been informed and believed “that the treatment professionals at [Partlow], the Department facility to which [E.C.J.] is currently confined and receiving care and treatment, recommend that she continue to reside there until otherwise recommended for discharge.” According to the department, “for [E.C.J.] to continue to receive care and treatment from Partlow, she will need to be admitted by virtue of a Legal Guardian’s custody, the Department of Human Resources’ ... custody or voluntarily consent to remain with Partlow for purposes of same given that she will be an adult on February 6, 2011.” The department requested that the juvenile court acknowledge that its commitment order would expire on February 6, 2011, and that the court provide the department “guidance on whether th[e] Court desires for [E.C.J.] to remain at Partlow (as is currently recommended by her treatment professionals) by virtue of legal custody vesting in [the Department of Human Resources] or otherwise, via delinquency, dependency, child in need of supervision, etc., that may have arisen with this Court before the minor’s 18th birthday.”

On March 25, 2011, the juvenile court entered a judgment in which it stated, in pertinent part:

“The parties discussed the issues previously presented to the Court regarding [E.C.J.] reaching her 19th birthday. The Court notes that [E.C.J.] was committed to the Department ... in July 2009. There has been no assertion by the Department ... that she has gained maximum benefit from Institutional treatment or no longer is in need of the services of the Department or has gained maximum benefit from the programs of the Department. On the contrary, in a report submitted to the Court dated February 15, 2011, the Department ... reported that her progress was only ‘fair.’ Upon consideration of the same, it is, therefore,
“ORDERED, ADJUDGED, and DECREED BY THE COURT that the legal and physical custody of [E.C.J.] shall remain with the Department....
“IT IS FURTHER ORDERED BY THE COURT that the Court retains jurisdiction over [E.C.J.] and this matter pursuant to § 12-15-412, Code of Alabama (1975).”

(Capitalization in original.) On April 8, 2011, the department filed its notice of appeal.

Discussion

On appeal, the department argues that the juvenile court erred in retaining jurisdiction over E.C.J. and in ordering that the legal and physical custody of E.C.J. remain with the department after E.C.J. reached the age of majority.

“ ‘Juvenile courts are purely creatures of statute that have extremely limited jurisdiction.’ L.B. v. R.L.B., 53 So.3d 969, 972 (Ala.Civ.App.2010). A juvenile court’s jurisdiction to act extends only so far as authorized by the explicit terms of the empowering statute. See Ex parte K.L.P., 868 So.2d 454, 456 (Ala.Civ.App.2003). Therefore, the question whether a juvenile court has acted within its proper bounds depends on the meaning of the statute bestowing jurisdiction. See id. Discerning the meaning of a jurisdictional statute involves a pure question of law, which this court reviews de novo. See J.W. v. C.B., 68 So.3d 878, 879 (Ala.Civ.App.2011).”

Montgomery Cnty. Dep’t of Human Res. v. McDermott, 74 So.3d 455, 457 (Ala.Civ.App.2011).

As the department argues, § 12-15-115(a)(3), Ala.Code 1975, a part of the Alabama Juvenile Justice Act (“the Act”), Ala. Code 1975, § 12-15-101 et seq., provides, in pertinent part, that the juvenile court will exercise jurisdiction in “[proceedings for the commitment of a minor or child.” (Emphasis added.) Further, § 12-15-412, Ala.Code 1975, a part of the Act, provides: “The juvenile court committing any minor or child to the custody of the department shall retain jurisdiction over the minor or child so long as the minor or child is in the custody of the department regarding the original commitment.” (Emphasis added.)

Section 12-15-102(3), Ala.Code 1975, also a part of the Act, defines a “child” to include “[a]n individual under the age of 18 years, or under 21 years of age and before the juvenile court for a delinquency matter arising before that individual’s 18th birthday.” Section 12-15-102(18) defines a “minor” as “[a]n individual who is under the age of 19 years and who is not a child within the meaning of this chapter.” We agree with the department that, because E.C.J. was no longer a “minor or child” as defined by § 12-15-102, the juvenile court did not retain jurisdiction over her at the time it entered the March 25, 2011, judgment.

Moreover, as the department asserts, because a judgment may not extend further than the jurisdiction bestowed upon the juvenile court by the empowering statute, see McDermott, 74 So.3d at 457, the juvenile court’s July 10, 2009, commitment order necessarily expired when E.C.J. reached the age of 19. To hold otherwise would be tantamount to holding that a juvenile court may enter a binding mental-health commitment order relating to the treatment of an adult.

We note that other jurisdictions have reached similar results in somewhat different contexts. See, e.g., In re Appeal, in Maricopa County Juvenile No. J-86509, 124 Ariz. 377, 604 P.2d 641 (1979) (holding that any jurisdiction regarding a juvenile commitment terminates at the age of majority and any provision of the statute extending that authority beyond that age was unconstitutional); In re Carson, 84 Wash.2d 969, 530 P.2d 331 (1975) (upon motion of ward to declare that judgment of wardship entered by juvenile court expired upon ward’s reaching age of majority, court determined that juvenile court had jurisdiction over only minors and judgment necessarily expired when jurisdiction was exhausted upon ward’s attaining age of majority). Although we acknowledge that some courts have concluded that a juvenile court may exercise jurisdiction beyond the state’s age of majority, those courts all relied on specific statutory language extending the scope of the jurisdiction of juvenile courts in specific situations. See, e.g., State v. Cassidy D., 52 Conn.Supp. 132, 29 A.3d 190 (2010) (because statute defined “child” as person who has violated a condition of probation in juvenile-delinquency proceeding, juvenile court retained jurisdiction to impose commitment order on individual who violated prior probation order although the individual had attained age of majority); In re Pittman, 315 So.2d 62 (La.Ct.App.1975) (holding that juvenile commitment order did not expire upon juvenile’s reaching age 18, state’s age of majority, because statute specifically provided that commitment orders could last until age 21). We have no doubt that the legislature could amend the Act to allow juvenile mental-health commitment orders to extend beyond the state’s general age of majority by enacting a specific statute to that effect; however, our legislature has specifically conditioned a juvenile court’s continuing jurisdiction over mental-health commitment orders on the minority status of the patient. Unless and until it changes that language to state an intent that minority status does not affect the juvenile court’s continuing jurisdiction, we hold that a juvenile court’s mental-health commitment order automatically expires upon the child’s reaching the age of majority.

The juvenile court erred in holding that its July 10, 2009, order remained in effect beyond E.CJ.’s 19th birthday and in entering a new judgment on March 25, 2011, expressly extending its jurisdiction. Because the juvenile court lacked jurisdiction when it entered the March 25, 2011, judgment, that judgment is void. L.P. v. A.W., 78 So.3d 1003, 1005 (Ala.Civ.App.2011). “This court is required to dismiss an appeal from a void judgment.” Owens v. Owens, 51 So.3d 364, 367 (Ala.Civ.App.2010). Accordingly, we dismiss the department’s appeal, albeit with instructions to the juvenile court to vacate its void judgment. L.P., 78 So.3d at 1006.

We also note that the Alabama Disabilities Advocacy Program (“ADAP”) has filed a brief to this court as an amicus curiae. In its brief, ADAP has raised several issues regarding the merits of the juvenile court’s judgment continuing the custody of E.C.J. with the department, which were not raised by the parties to this case. Because we have determined that the juvenile court lacked jurisdiction to continue the commitment of E.C.J. to the department or to enter its judgment, ADAP’s arguments are moot. Even if those arguments were not moot, we would not consider them because they were not raised by the parties to this case. Suttles v. Roy, 75 So.3d 90, 104-05 (Ala.2011) (“[Ajrguments raised by amici curiae and not argued by the parties to the case are not considered by this Court.”).

APPEAL DISMISSED WITH INSTRUCTIONS.

BRYAN, J., concurs.

THOMAS, J., concurs specially.

THOMPSON, P.J., dissents, with writing, which PITTMAN, J., joins.

THOMAS, Judge,

concurring specially.

I agree that the juvenile court had no jurisdiction to enter a judgment relating to the juvenile commitment of E.C.J. after she reached the age of majority. Although I, too, share the concern expressed by Presiding Judge Thompson — that the expiration of a juvenile commitment upon a minor’s reaching the age of majority might be disruptive to the treatment of that person — I must also concur in the majority’s conclusion that a juvenile commitment must necessarily expire upon a minor’s 19th birthday. I write specially to note that I am satisfied that mental-health care for such a person could be continued without disruption when necessary under the application of the law governing the involuntary commitment of adults.

Because the probate court does not have jurisdiction over the commitment of minors or children, see Ala.Code 1975, § 22-52-16, no petition seeking to continue E.C.J.’s commitment could have been filed in the probate court in anticipation of her reaching age 19. That does create a risk that E.C.J. would be released from the custody of the Department of Mental Health because of the expiration of her juvenile commitment. However, a petition to recommit E.C.J. could have been filed in the probate court immediately upon her 19th birthday; in that petition, the Department of Mental Health could have requested that E.C.J. remain in a mental-health-care facility pending the outcome of the final commitment hearing in the probate court. See Ala.Code 1975, § 22-52-7(a) (permitting a commitment petitioner to request that the probate court place limitations on a commitment respondent’s liberty pending the outcome of the final hearing on the petition). If the probate court were convinced that limitations on E.C.J.’s liberty were warranted because she presented a danger to herself or to others, see § 22-52-7(b), the probate court could order E.C.J. to be detained “at a designated mental health facility or hospital,” § 22-52-7(a), pending a probable cause hearing to be held within 7 days, Ala.Code 1975, § 22-52-8(a), and, potentially, until the final hearing on the commitment petition, which is required to be held within 30 days of service of the petition. § 22-52-8(a) & (b).

The procedures provided in the commitment statutes minimize the potential for the release of a patient merely because he or she has turned 19, which, at least in my mind, is the most troubling aspect of the expiration of a juvenile commitment order. Based on a review of the limited materials in the record on appeal, I think it is likely that the Department of Mental Health could present sufficient evidence that E.C.J.’s liberty should be restrained pending a commitment hearing in the probate court and, thus, that the status quo could be maintained. Accordingly, I concur in the majority opinion.

THOMPSON, Presiding Judge,

dissenting.

I agree that the juvenile court did not have jurisdiction to enter a new judgment in this matter on March 25, 2011, because, by that date, E.C.J. had reached the age of majority; however, I do not believe that the juvenile court’s judgment of July 10, 2009, ordering the involuntary commitment of E.C.J. “expired” when E.C.J. reached the age of majority.

It is undisputed that the juvenile court had jurisdiction to enter the judgment of July 10, 2009, in which E.C.J. was committed to the legal and physical custody of the Alabama Department of Mental Health (“the department”). E.C.J. was a minor when, on February 6, 2009, upon a petition filed by the Limestone County Department of Human Resources, she was involuntarily committed to the department and then admitted to the William D. Partlow Developmental Center (“Partlow”) in Tuscaloosa. On March 18, 2009, the department filed a motion seeking to release E.C.J. from its custody. The juvenile court granted the motion on April 3, 2009, and custody of E.C.J. was returned to her parents. In May 2009, E.C.J.’s guardian ad litem filed another petition seeking E.C.J.’s involuntary commitment. On July 10, 2009, the juvenile court granted the petition of the guardian ad litem on the ground that E.C.J. was suffering from mental illness and intellectual disability.

E.C.J.’s 19th birthday was February 6, 2011. On February 4, 2011, in anticipation of E.C.J.’s 19th birthday, the department filed a “Notice of Expiration of Juvenile Court Involuntary Mental Commitment to the Alabama Department of Mental Health,” which, the department asserts, was made pursuant to §§ 12-15^409 and -410, Ala.Code 1975. The department did not seek to have E.C.J.’s involuntary commitment lifted, to end E.CJ.’s treatment at Partlow, or to have E.C.J. removed from the department’s custody. In its notice, the department asked the juvenile court

“to acknowledge with its ruling, the Department’s legal assertion that its ORDER dated July 10, 2009, committing [E.C.J.] to [the department] on the basis that she is both mentally ill and mentally retarded, is due to expire on February 6, 2011, upon the minor reaching her age of majority, i.e. 19 years of age. Further, the Department requests guidance on whether [the juvenile court] desires for [E.C.J.] to remain at Partlow (as is currently recommended by her treatment professionals) by virtue of legal custody vesting in [the Department of Human Resources] or otherwise, via delinquency, dependency, child in need of supervision, etc. ..., that may have arisen with [the juvenile court] before the minor’s 18th birthday.”

A hearing was held on the issues related to E.C.J.’s reaching the age of majority, and on March 25, 2011, the juvenile court entered its judgment directing that legal and physical custody of E.C.J. was to remain with the department and stating that the juvenile court was retaining jurisdiction over the matter pursuant to § 12-15-412. The department timely appealed to this court.

The department argues that the juvenile court’s “mental commitments expire at the age of majority.” In support of its argument, the department emphasizes language from several statutes governing the commitment of minors or children with mental illness or mental retardation, highlighting the words “minor or child” in each. The department quotes § 12-15-115(a)(3), Ala.Code 1975, which states, in pertinent part, that the juvenile court will exercise jurisdiction in “ ‘[proceedings for the commitment of a minor or child.”’ (Emphasis in department’s appellate brief.) It also quotes § 12-15-411, governing the discharge of a mentally ill or a mentally retarded minor or child from the department’s custody, as follows:

“ ‘(a) Any minor or child committed to the custody of the department who has gained maximum benefit from institutional treatment, who is no longer in need of the services of the department, or who has gained maximum benefit from the programs of the department shall be discharged from the custody of the department. The minor or child shall not be received again by the department pursuant to the original commitment order unless deemed appropriate by a court of proper jurisdiction holding a subsequent hearing.
“ ‘(b) The department shall notify the committing juvenile court or the court to which the case is transferred and the parties to the commitment action in writing, which must be received by the juvenile court at least 10 days in advance of the proposed discharge. The committing juvenile court, at the time of discharge, shall transfer custody to a person or another state department or agency deemed suitable by the juvenile court.’ ”

(Emphasis in department’s appellate brief.) The department also quotes the basis for the juvenile court’s holding that it retained jurisdiction over this matter, § 12-15^412, which states: “ ‘The juvenile court committing any minor or child to the custody of the department shall retain jurisdiction over the minor or child so long as the minor or child is in the custody of the department regarding the original commitment.’ ” (Emphasis in department’s appellate brief.)

In addition to statutes relating to the commitment of mentally ill or intellectually disabled minors and children, the department cites general statutes defining a minor as one who is under the age of 19 years, Ala.Code 1975, §§ 12-15-102(18) and 26-1-1 (defining the age of majority as 19 years). The department also cites In re Warrick, 501 So.2d 1223 (Ala.Civ.App.1985). Warrick involved the issue whether employees of the department were in contempt for violating a juvenile court’s order that committed a child to the department for “ ‘evaluation, treatment and placement’ ” in a certain facility pending further court orders. Id. at 1225. The statutes in effect in 1984 were silent as to the authority of the department to discharge a patient. Id. at 1227. In this case, the department relies on language in Warrick in which the court in that case concluded that “[o]nce the juvenile court transfers custody to the department, custody remains in the department until it is relieved of that responsibility by the juvenile court or until the child reaches its majority.” Id. Therefore, the Warrick court concluded, the department could not be relieved of its legal responsibility to the child “except by order of the juvenile court or the passage of time.” Id. Accordingly, the court held that the department improperly had taken it upon itself to discharge the child. Id. at 1228.

We note that in Warrick the child had not reached the age of majority. Moreover, Warrick was decided more than 20 years before the statutes relevant to the issue presented in this case were promulgated. As previously mentioned, § 12-15-411 governs when a child or a minor can be discharged from the custody of the department. Specifically, it provides that a child or a minor in the custody of the department can be discharged when that child or minor “has gained maximum benefit from institutional treatment, ... is no longer in need of the services of the department, or ... has gained maximum benefit from the programs of the department.” § 12-15-411 (a). That statute does not provide that treatment of a child or a minor already committed to the custody of the department “expires” simply because that child or minor reaches the age of majority. To the contrary, § 12-15-412 explicitly provides that “[t]he juvenile court committing any minor or child to the custody of the department shall retain jurisdiction over the minor or child so long as the minor or child is in the custody of the department regarding the original commitment.” Nothing in that statute calls for a court-ordered commitment to “expire” simply because the child or the minor who is receiving treatment pursuant to that order has reached the age of majority.

I believe that, under traditional principles of statutory construction, had the legislature intended for a mental commitment to “expire” when a committed minor reaches the age of majority, it could have included such language in the statutes governing the involuntary commitment of minors or children. See Ex parte Sawyer, 892 So.2d 898, 902 (Ala.2004). That the legislature did not include in its statutory scheme an “expiration” of a commitment order upon the minor’s reaching the age of majority implies that it did not intend for a validly entered commitment order to “expire.” See, e.g., Ex parte State Dep’t of Revenue, 624 So.2d 582, 584 (Ala.1993) (“[Cjourts often apply the legal maxim expressio uni-us est exclusio alterius (the expression of one thing is the exclusion of another) in interpreting statutes.”).

In fact, an expiration of a commitment order based solely on the age of the person being treated for mental illness or any other mental disability may be disruptive to the care and treatment of that person. Furthermore, to require a new commitment proceeding during the course of treatment that has already been ordered by a court merely because the person being treated reaches the age of majority is a waste of judicial resources. The following scenario comes to mind. Assume that, one week before his 19th birthday, a minor becomes a danger to himself or to others such that the department is awarded custody of the minor pursuant to a valid order of involuntary commitment entered by the juvenile court. Under the department’s rationale, when the minor reaches the age of majority a week later, the entire commitment process must be carried out again, although the person is in the custody of the department pursuant to a valid judgment.

In this case, the department admits that E.C.J. has made only “fair” progress in her treatment and that it was not recommending her for release from its custody. Indeed, the department wishes her to remain at Partlow. As long as E.C.J. remains committed pursuant to the order of July 2009, there is simply no reason for a new court to enter a duplicative order. We note that once a child or a minor has been discharged from the custody of the department, § 12-15-411(a) provides that the child or minor “shall not be received again by the department pursuant to the original commitment order unless deemed appropriate by a court of proper jurisdiction holding a subsequent hearing.” That provision of § 12-15-411 appears to contemplate the following scenario: when a mentally ill or intellectually disabled minor has been committed to the custody of the department and is subsequently released, if that minor has reached the age of majority, then the juvenile court cannot order a subsequent commitment; the commitment must be ordered by a court with jurisdiction over one who has reached the age of majority.

My research has revealed no law — and the department and the main opinion have not cited any law — that would authorize a party to file a “Notice of Expiration” of a validly entered judgment. The proper method by which to have a judgment set aside is for a party to file a motion pursuant to Rule 60(b), Ala. R. Civ. P., which allows for judgments to be set aside under certain circumstances. The department did not make any effort to have the judgment in this case set aside. Instead, it unilaterally gave “notice” to the juvenile court that the July 2009 judgment had “expired.”

I believe that the July 2009 judgment will remain effective until E.C.J. has gained maximum benefit from institutional treatment, is no longer in need of the services of the department, or has gained maximum benefit from the programs of the department. See § 12-15-411. Therefore, I must respectfully dissent.

PITTMAN, J., concurs.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Rebecca Wright DREADING v. James Daniel DREADING.
    2100565.
    Court of Civil Appeals of Alabama.
    Nov. 10, 2011.
    Rebecca Wright Dreading, pro se.
    Edward L. McRight, Jr., Birmingham, for appellee.
   BRYAN, Judge.

Rebecca Wright Dreading (“Rebecca”) appeals from a judgment of the St. Clair Circuit Court (“the trial court”) that found her guilty of criminal contempt and sentenced her to five days in jail, with three days suspended.

The record on appeal reveals that the contempt judgment appealed by Rebecca arose out of a custody action between Rebecca and James Daniel Dreading (“James”). The record before this court does not reveal how that action originated. However, for purposes of this appeal, only the following procedural history is relevant. A motion hearing took place on February 7, 2011, and, on that date, Rebecca committed certain acts, set forth in detail infra, that led the trial court to find Rebecca guilty of contempt after a hearing on February 10, 2011. The case-action summary contains a handwritten entry on February 10, 2011, that states: “Contempt hearing, [Rebecca] present. Testimony of [Rebecca], [Rebecca] found in contempt. [Five] days in jail, [three] suspended, [two] to serve.”

On March 11, 2011, Rebecca filed a motion to alter, amend, or vacate the trial court’s judgment of contempt. Before the trial court ruled on her postjudgment motion, Rebecca filed a notice of appeal to this court on March 18, 2011. On April 5, 2011, the trial court rendered an order on Rebecca’s postjudgment motion that amended the contempt judgment dated February 10, 2011. The trial court’s amended contempt judgment stated the following:

“On February 7, 2011, a hearing was held by this court on outstanding motions. On February 10, 2011 a contempt hearing was held regarding alleged contempt by [Rebecca] following the February 7, 2011 hearing. During the contempt hearing [Rebecca] was present and represented by her counsel. [James] was represented by his counsel. The Guardian ad Litem was present.
“[Rebecca] was placed under oath and gave testimony and the court found as follows:
“Following the February 7, 2011 hearing, the Guardian ad Litem and her client (the twelve year old child of the parties) met in the foyer outside the courtroom doors near the courtroom bathrooms and water fountain. The Guardian ad Litem and child left that area leaving the Guardian ad litem’s file including the Guardian ad Litem’s yellow notebook with her handwritten notes in it. These items were left in a chair where they were sitting in the foyer.
“[Rebecca] then walked into the foyer area where the Guardian ad Litem had previously met with her client. When the Guardian ad litem returned to the area and determined that the notebook was missing, [Rebecca] was then asked by the Guardian ad Litem and her own attorney if she knew the whereabouts of the notebook. [Rebecca] denied knowledge of its whereabouts. [Rebecca], during the February 10, 2011 hearing, admitted to taking the notebook and placing it in her crate containing her possessions. She also admitted tearing out the portion of the Guardian ad Li-tem’s notebook containing the Guardian ad Litem’s notes, placing the notes in her belongings and throwing the unused portion of the Guardian ad Litem’s notebook in the foyer trash can. [Rebecca] then left the courthouse. The Guardian ad Litem’s discarded notepad, minus the notes, was located shortly thereafter in the foyer trash can by court security. A hearing was then set on February 10, 2011 and counsel was notified.
“Prior to the February 10, 2011 hearing, [Rebecca] returned to the courtroom foyer area and she testified that one of the reasons she returned to that area was to see if her own attorney had lied to her about the existence of a security camera in the foyer area. During the February 10, 2011 hearing, [Re-becea]’s attorney, on behalf of [Rebecca], returned the Guardian ad Litem’s notes which had been taken by [Rebecca] without the Guardian ad Litem’s permission. [Rebecca] then assured this court that she returned all notes and that these notes were not copied or duplicated in any way.
“Following this hearing, the court found [Rebecca] in contempt [and] ordered Rebecca] to serve 5 days in the St. Clair County Jail. However, the court suspended all but 2 days.”

On appeal, Rebecca argues that the trial court’s contempt judgment is erroneous because (1) her actions on February 7, 2011, did not constitute a direct contempt, (2) she did not receive proper notice of a constructive-contempt proceeding, and (3) the trial-court judge violated specific provisions set forth in the Alabama Canons of Judicial Ethics.

Initially, we note that the appellate briefs of both parties contain factual allegations and/or have documents attached that are not in the certified record on appeal. As we have stated on many prior occasions, “[a]n appellate court is confined in its review to the appellate record, that record cannot be ‘changed, altered, or varied on appeal by statements in briefs of counsel,’ and the court may not ‘assume error or presume the existence of facts as to which the record is silent.’ ” Beverly v. Beverly, 28 So.3d 1, 4 (Ala.Civ.App.2009) (quoting Quick v. Burton, 960 So.2d 678, 680-81 (Ala.Civ.App.2006)).

Since 1994, the provisions of Rule 70A, Ala. R. Civ. P., have applied to contempt proceedings arising out of civil actions. Rule 70A(a)(2), Ala. R. Civ. P., provides, in pertinent part:

“(A) ‘Direct contempt’ means disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court’s business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court’s dignity and authority before the public.
“(B) ‘Constructive contempt’ means any criminal or civil contempt other than a direct contempt.
“(C) ‘Criminal contempt’ means either “(i) Misconduct of any person that obstructs the administration of justice and that is committed either in the court’s presence or so near thereto as to interrupt, disturb, or hinder its proceedings, or
“(ii) Willful disobedience or resistance of any person to a court’s lawful writ, subpoena, process, order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor.
“(D) ‘Civil contempt’ means willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.”

(Emphasis added.)

The trial court does not specify whether it found Rebecca guilty of direct contempt or constructive contempt. Such a determination is important because the procedure for finding a party in direct contempt is different from the procedure required before a party can be found guilty of constructive contempt. Rule 70A provides:

“(b) Summary Disposition of Direct Contempt Proceedings.
“(1) Finding. The court may summarily find in contempt any person who commits a direct contempt, immediately notifying the person of its finding. The judge shall cause to be prepared a written order reciting the grounds for the finding, including a statement that the judge observed the conduct constituting the contempt. The order shall be signed by the judge and entered of record.
“(2) Mitigation. The court shall apprise the person of the specific conduct on which the finding is based and give that person a reasonable opportunity to present evidence or argument regarding excusing or mitigating circumstances. No decision concerning the punishment to be imposed shall be made during the course of the proceeding out of which the contempt arises, unless prompt punishment is imperative to achieve immediate vindication of the court’s dignity and authority.
“(3) Sentence. Unless it is pronounced immediately under subsections (1) and (2) above, sentence shall be pronounced in open court, in the presence of the contemnor, within seven (7) days after the completion of the proceeding out of which the contempt arose.
“(c) Disposition of Constructive Contempt Proceedings.
“(1) Initiation of Action. A proceeding based on constructive contempt, whether criminal or civil, shall be subject to the rules of civil procedure. The proceeding shall be initiated by the filing of a petition seeking a finding of contempt (the petition may be in the form of a counterclaim or cross-claim authorized under Rule 13[, Ala. R. Civ. P.]). The petition shall provide the alleged contemnor with notice of the essential facts constituting the alleged contemptuous conduct.
“(2) Issuance of Process and Notice. Upon the filing of a contempt petition, the clerk shall issue process in accordance with these rules, unless the petition is initiated by a counterclaim or cross-claim authorized under Rule 13. In any case, the person against whom the petition is directed shall be notified (1) of the time and place for the hearing on the petition and (2) that failure to appear at the hearing may result in the issuance of a writ of arrest pursuant to Rule 70A(d), to compel the presence of the alleged contemnor.
“(3) Right to Counsel. In actions involving criminal contempt, upon the request of the alleged contemnor and proof of indigence, counsel shall be appointed to represent the alleged contemnor.”

(Emphasis added.)

There is no indication in the record on appeal that the procedure set forth in Rule 70A(c), Ala. R. Civ. P., was provided to Rebecca in the present case. There is no indication that a contempt petition was filed, and, thus, there is no indication that the clerk of the trial court issued process in accordance with the Rules of Civil Procedure. Thus, the record reveals that the contempt proceeding below did not conform to the procedure set forth in Rule 70A(c), and, therefore, in order for the judgment to be valid, the trial court must have found Rebecca in direct contempt. See Carpenter v. Newman, 853 So.2d 1002, 1006 (Ala.Civ.App.2002) (concluding that the trial court had found the appellant guilty of direct contempt after considering the language in the judgment, the procedural history of the case, and the fact that there was no indication in the record that any party sought to hold the appellant in contempt).

On appeal, Rebecca argues that her actions that led to the finding of contempt were committed outside the courtroom and outside the presence of the trial-court judge and that, therefore, her actions do not constitute a direct contempt of court. We agree. The plain language of Rule 70A(a)(2)(A) provides that the allegedly contemptuous behavior must have been committed in open court, in the presence of the trial-court judge, so that “all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court.” It is clear from the trial court’s findings of fact set forth above that all the essential elements of Rebecca’s misconduct did not occur in open court or in the presence of the judge. Thus, Rebecca’s misconduct could not have constituted direct contempt. See Charles Mfg. Co. v. United Furniture Workers, 361 So.2d 1033, 1036 (Ala.1978) (“Direct con-tempts are those committed in the ‘presence’ of the judge, where all of the essential elements of the misconduct are under the eye of the court, and are actually observed by the court. If some of the essential elements are not personally observed by the judge it is an indirect!, or constructive,] contempt.”).

Accordingly, because we conclude that Rebecca’s misconduct did not constitute direct contempt, and because we have determined that the procedure required for a finding of constructive contempt was not followed, we reverse the trial court’s judgment finding Rebecca in contempt.

REVERSED.

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

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

      . That entry was signed by the trial-court judge, see Rule 58(a) and (b), Ala. R. Civ. P. (regarding the proper methods of rendering an order or a judgment), but that judgment was not entered pursuant to Rule 58(c), Ala. R. Civ. P., until October 18, 2011. See Rule 58(c) (providing that an order or judgment shall be deemed entered for purposes of the Rules of Civil and Appellate Procedure as of the actual date of input into the State Judicial Information System).

      . The trial court’s April 5, 2011, amended contempt judgment was not entered in the State Judicial Information System C'SJIS”) until October 18, 2011; thus, Rebecca’s notice of appeal, which had been filed before the February 10 and April 5, 2011, contempt judgments were actually entered into SJIS, is treated as having been filed on October 18, 2011. See Rule 4(a)(4), Ala. R.App. P. ("A notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after the entry and on the day thereof.” (emphasis added)).

      . Included in the record on appeal is an unverified motion filed by Rebecca on or about April 14, 2011, after her notice of appeal had been filed but before it became effective, which was styled "Defendant’s Reply to Contempt Details Order.” In that "motion,” which does not request any specific relief, Rebecca sets forth her version of the facts that led to the finding of contempt. The record on appeal does not contain a transcript of any court proceedings. Rebecca's April 14, 2011, motion setting forth her version of the facts cannot be considered by this court as an approved statement of the evidence or proceedings because Rebecca did not attempt to make her statement of the evidence part of the appellate record pursuant to Rule 10(d), Ala. R.App. P.

      . In light of the fact that we are reversing the trial court’s judgment on the grounds set forth above, we pretermit discussion of the remainder of the arguments presented by Rebecca on appeal. Furthermore, we note that our decision does not necessarily preclude the filing of a constructive-contempt action against Rebecca.


author: MOORE, Judge. BRYAN, Judge,

text:
    Cheryl Perdue FREEMAN v. Charles Dewayne FREEMAN.
    2100023.
    Court of Civil Appeals of Alabama.
    Nov. 10, 2011.

      Kelli F. McDaniel, Montgomery, for appellant.
    Terrie S. Biggs of Capell & Howard, P.C., Montgomery, for appellee.
   MOORE, Judge.

Cheryl Perdue Freeman (“the former wife”) appeals from a judgment of the Montgomery Circuit Court in a postdi-vorce modification and contempt proceeding involving her and Charles Dewayne Freeman (“the former husband”). We affirm in part and reverse in part.

Procedural History

The parties were divorced by a judgment of the Montgomery Circuit Court on February 26, 2001. That judgment adopted and incorporated a settlement agreement (“the agreement”) between the parties, pursuant to which the former wife was awarded primary physical custody of the parties’ children and the former husband was awarded visitation and ordered to pay child support. The former wife was also awarded the marital residence, but she was ordered to pay the former husband a portion of the equity in the marital residence, the amount of which was to be determined by a procedure set out in the agreement.

On February 28, 2008, the former husband filed a motion to show cause why the former wife should not be held in contempt for her violation of certain provisions of the divorce judgment. He also requested that the former wife be ordered to pay his attorney fees and costs. On May 9, 2008, the former wife filed an answer and a counterpetition to show cause why the former husband should not be held in contempt for his violation of certain provisions of the divorce judgment. She also petitioned to modify, among other things, the former husband’s child-support obligation and his visitation with the parties’ children. The former husband answered the former wife’s counterpetition. Upon motion of the former wife, the trial court appointed a guardian ad litem to represent the interests of the children. A parenting coordinator was also appointed based on an agreement of the parties.

Following ore tenus proceedings, the trial court entered a judgment on April 22, 2010, in which it, among other things, modified the former husband’s visitation with the children, modified the former husband’s child-support obligation prospectively from $1,500 to $1,700 a month, held the former wife in contempt for violating the divorce judgment and ordered her to pay the former husband’s attorney fees, determined the amount the former wife owed the former husband as his portion of the equity in the marital residence, declined to hold the former husband in contempt, and ordered each party to pay a portion of the fees for the guardian ad litem and the parenting coordinator. On May 24, 2010, the former wife filed a post-judgment motion; that motion was denied by operation of law on August 23, 2010. Rule 59.1, Ala. R. Civ. P. The former wife filed her notice of appeal on October 4, 2010.

Discussion

I. Visitation

A.

On appeal, the former wife first argues that the trial court erred in modifying the former husband’s visitation. She notes that the parties reached a settlement agreement on the visitation issue (“the visitation agreement”) and that the trial court’s judgment did not comport with that agreement because, she says, it did not require that the former husband submit to an “alcohol screen” and comply with any treatment recommendations resulting from that screen before the parenting coordinator considered allowing him to have overnight visitation with the children. We initially note that “[a] trial court may adopt or reject such parts of the [parties’] agreement as it deems proper from the situation of the parties as shown by the evidence.” Junkin v. Junkin, 647 So.2d 797, 799 (Ala.Civ.App.1994).

In the present case, before the trial, the parties, along with the parenting coordinator and the children’s guardian ad litem, both of whom had been appointed by the court, announced that the parties had reached a settlement as to the issue of visitation. The following exchange took place before the trial:

“THE COURT: All right. Here’s what it — see if this works. The [former husband] will submit to alcohol screen, follow any required treatment recommendations in order to have overnight visitation ... considered by the parenting coordinator.
“[COUNSEL FOR THE FORMER HUSBAND]: That’s great.
“[PARENTING COORDINATOR]: And it needs to put anger management in there, too, by alcohol — yes, ma’am. That’s correct.
“THE COURT: Okay. All right. Otherwise, daytime visits only. Does that clear that up?
“[COUNSEL FOR THE FORMER HUSBAND]: It does. Thank you. Your Honor.
“THE COURT: Well, we need to be clear.
“[COUNSEL FOR THE FORMER HUSBAND]: Absolutely. We’d like to avoid motions to clarify.
“[COUNSEL FOR THE FORMER WIFE]: I’m clear.”
The trial court’s judgment stated the following with regard to the former husband’s visitation:
“Prior to trial, the parties advised the Court that they had reached an agreement regarding the visitation issue for the two minor children.... Said agreement is fully set forth below. The parties’ agreement provides that the Parenting Coordinator shall remain in place in the case and that he shall provide direction so as to make recommendations regarding the terms and conditions of the Former Husband’s visitation.
“B. Overnight visitation is suspended by agreement until certain terms and conditions are or can be worked out between the parties. Specifically, in order for the Former Husband’s visitation to increase from alternating Saturdays to overnight, the Former Husband has agreed to immediately enroll in and successfully complete an anger management course. After the completion of the anger management course the Former Husband shall file proof of completion with both counsel and the Court.
“E. The Former Husband shall submit to an alcohol or substance abuse screen and any required or recommended treatment thereafter if the result of said screening is positive.”

Although the judgment does provide that the former husband must submit to an alcohol or substance-abuse screening and any required or recommended treatment, we note that that requirement is not included as a condition to considering whether the former husband should be allowed overnight visitation with the children. Although there was limited testimony at the trial regarding the former husband’s alcohol use, at one point the trial court interrupted questioning by the former wife’s attorney regarding the former husband’s alcohol use and its effect on the children, pointing out that there was no need for evidence on that subject because the parties had settled that issue. Further, from the language of the judgment, it is clear that the trial court intended to enter a judgment comporting with the parties’ visitation agreement. Thus, we cannot conclude that the trial court decided to reject the parties’ visitation agreement based on the evidence adduced at the trial. See Junkin, supra. Accordingly, we reverse the judgment to the extent that it does not require the former husband to submit to an alcohol or substance-abuse screening and to participate in any required or recommended treatment as a condition to considering whether the former husband should be allowed overnight visitation with the children, and we remand this cause for the entry of a judgment that accurately reflects the parties’ settlement agreement on the issue of visitation.

B.

The former wife also argues that the trial court erred in including a provision requiring both parties to abstain from consuming alcoholic beverages while the children are in their custody because, she says, that provision deviated from the parties’ visitation agreement and there was no evidence regarding the former wife’s use of alcohol. We note, however, that the former wife failed to argue this issue to the trial court, and, thus, we cannot consider it on appeal. Kiel v. Kiel, 51 So.3d 1058, 1067 (Ala.Civ.App.2010) (“We cannot reverse the trial court’s judgment on the basis of an argument that the [an appellant] did not present to the trial court.”); see also Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“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.”).

II. Discovery

The former wife next argues that the trial court exceeded its discretion by not allowing her to issue subpoenas duces tecum to the former husband’s business associates and clients. She also argues that the trial court exceeded its discretion by not allowing her to issue a subpoena duces tecum to the former husband’s accountant requesting information regarding the Subchapter “S” limited liability corporation of which the former husband is a shareholder. The former wife asserts that, because child support was at issue, evidence regarding the former husband’s income was discoverable. We conclude, however, that any error regarding the discovery of the former husband’s income was harmless. See Rule 45, Ala. R.App. P. In the present case, the former husband’s CS-41 “Child-Support-Obligation Income Statement/Affidavit” form, see Rule 32(E), Ala. R. Jud. Admin., indicated that he earns $13,951 per month. The former wife testified that she earns $1,402.23 per month. Thus, the parties’ “combined adjusted gross income,” see Rule 32(C), Ala. R. Jud. Admin., exceeds the uppermost limit of the child-support schedule set forth in Rule 32, Ala. R. Jud. Admin., and, thus, the amount of child support was required to be based on the needs of the children and the ability of the former husband to pay for those needs. See, e.g., Dyas v. Dyas, 683 So.2d 971, 973-74 (Ala.Civ.App.1995). The former wife testified that the children’s expenses are $4,556.55 per month. The former husband clearly has the ability to pay for those needs. Because the needs of the children were established and the ability of the former husband to meet those needs was also established, any further information regarding the former husband’s finances would be immaterial. Thus, we decline to reverse the trial court’s judgment on this issue. See Rule 45, Ala. R.App. P.

III. Child Support

A.

The former wife argues that the trial court exceeded its discretion by increasing the former husband’s child-support obligation by only $200 per month. As noted previously, the parties’ combined adjusted gross income exceeds the uppermost limit of the child-support schedule set forth in Rule 32.

“When the combined adjusted gross income exceeds the uppermost limit of the child support schedule, the amount of child support awarded must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce, and must reasonably relate to the obligor’s ability to pay for those needs.... To avoid a finding of an abuse of discretion on appeal, a trial court’s judgment of child support must satisfy both prongs.

Dyas, 683 So.2d at 973-74.

In the present case, at the time the agreement was entered between the parties in the original divorce proceedings, the former wife was employed with the State of Alabama; the former husband was unemployed at that time. The former wife was laid off from her job with the State in December 2003; she testified that she had been earning $52,900 a year at that time. After she was laid off, the former wife started a business that has never become profitable and has also worked part-time jobs. In August 2009, the former wife secured a position as a media aide for Carr Junior High School earning $16,824 per year, her highest income since she was laid off from her job with the State. As noted previously, the former husband’s CS-41 form indicated that he earns $13,951 per month. The former wife testified that the children’s needs have increased tremendously since the parties’ divorce. She testified that the children’s actual expenses are $4,556.55 per month and introduced documentation supporting her testimony. She testified that she had been able to afford those expenses with help from her parents, who had recently died, but that she had also incurred some credit-card debt. She also testified that she had been able to hire a person to clean her house occasionally and that she has someone cut her grass. The former husband testified that he had given the former wife extra money for the children periodically, but not every time he was asked.

In support of her argument, the former wife cites McGowin v. McGowin, 991 So.2d 735 (Ala.Civ.App.2008) (plurality opinion). In McGowin, the main opinion held that the trial court had exceeded its discretion in setting a child-support obligation that was less than the undisputed reasonable needs of the children when the husband was able to meet those needs. 991 So.2d at 743. We conclude that the present case is distinguishable from McGowin because McGowin was an original divorce action and, thus, the needs of the children were established while the parties were married. As noted previously, this court has held that “[i]f an obligor participates in and agrees to a certain lifestyle for a child during a marriage, then that obligor should be expected to contribute to the reasonable and necessary needs of the child for the continuation of that lifestyle after divorce.” Dyas, 683 So.2d at 973-74 n. 2.

In Holman v. Holman, 435 So.2d 98, 101-02 (Ala.Civ.App.1983), this court held that a trial court had not exceeded its discretion in increasing child support by only $175 per month even though the obli-gee had testified that “her expenses incurred in maintaining the household [had] increased from $7,845.75 in 1975 to $19,621.45 in 1981” and the obligor’s income had increased from $33,900 to $52,980 during that same period. Similarly, in the present case, we cannot conclude that the trial court exceeded its discretion in increasing the former husband’s monthly child-support obligation by only $200 despite the former wife’s testimony regarding the children’s increased expenses.

In Cassick v. Morgan, 628 So.2d 862, 864 (Ala.Civ.App.1993), a case cited by the former husband in his brief to this court, this court stated that “[exorbitant spending in itself is not sufficient to prove a substantial change in circumstances; instead, it is the increased needs of the child coupled with the parent’s ability to pay.” In the present case, the former wife did not testify as to what specific needs of the children had increased since the divorce, nor did she testify as to what the children’s expenses were at the time of the divorce. She simply stated that their needs had increased and that she had spent $4,556.55 per month on the children. The $4,556.55 in expenses included $800 per month for extracurricular activities and miscellaneous expenses. As pointed out on cross-examination, the former wife included in the children’s expenses $542 for Christmas cards, $125 for deer processing, and $332.67 for the children’s portion of a family vacation to the Cayman Islands. The former wife’s CS-41 forms from the original divorce proceedings and from this action indicate that the children’s monthly health-insurance premium had increased from $164 to $322.94 but that her child-care expenses had decreased from $850 to nothing.

Based on the foregoing, we conclude that the trial court could have found that the children’s reasonable and necessary expenses had not increased as much as the former wife indicated and that the $4,556.55 amount was merely the result of exorbitant spending on the part of the former wife. Cassick, supra. The trial court could have also concluded that, although the former husband testified that he had given the former wife additional money from time to time, the former wife had been able to pay for the children’s expenses and, thus, was able to contribute more to the children’s needs than her stated income indicated. See, e.g., Cassick, 628 So.2d at 864 (noting that “the record does not indicate ... that the wife is unable to meet her share of [the children’s] costs”). Accordingly, we decline to reverse the trial court’s judgment as to the issue of the amount of child support.

B.

The former wife also argues that the trial court exceeded its discretion by failing to modify the former husband’s child-support obligation retroactively. “The determination to modify child support retroactively is a decision committed to the sound discretion of the trial court.” Nave v. Nave, 942 So.2d 372, 379 (Ala.Civ.App.2005). “The determination whether an award of retroactive child support is appropriate is dependent on the specific facts of the case.” Willis v. Willis, 45 So.3d 347, 349 (Ala.Civ.App.2010). In the present case, as the former husband points out, the trial was continued at least three times at the request of the former wife or her attorney. Thus, we cannot conclude that the trial court exceeded its discretion in declining to modify the former husband’s child-support obligation retroactively. See Volovecky v. Hoffman, 903 So.2d 844, 850 (Ala.Civ.App.2004) (in which this court considered request for a continuance by obligee’s attorney as a factor in determining that the trial court had not exceeded its discretion in declining to modify the father’s child-support obligation retroactively).

IV. Contempt — Former Wife

The former wife next argues that the trial court exceeded its discretion by finding her in contempt. With regard to the parties’ former marital residence, the agreement that was incorporated into the divorce judgment provided:

“12. REAL PROPERTY:
“a. ... The Parties agree that the [former] wife shall be the sole and absolute owner of the marital home, subject to the existing first mortgage.
“b. The [former] wife shall be responsible for any mortgage indebtedness on the property, including repairs and maintenance, and shall hold the [former] husband harmless therefrom.
“c. The [former] husband shall execute all documents necessary to convey all his right, title, and interest in the real property to the [former] wife.
“d. Upon the expiration of three (3) years from the date of the final decree of divorce [i.e., in February 2004], the parties shall obtain and equally divide the cost of a professional real estate appraisal of the marital residence, in order to determine the fair market value at that time. The [former] wife shall then execute a note to the [former] husband, payable no later than the eighth (8th) anniversary of the final decree of divorce, or until the [former] wife remarries, whichever first occurs, in the amount of half of the equity in the marital residence....
“e. The [former] wife shall give the [former] husband a second mortgage on the property to secure the note described in the immediately preceding paragraph.
“f. The [former] wife will cooperate in any and all efforts to have the [former] husband’s name removed from the existing note and first mortgage within one year from the date of the final decree, and will sign any document intended for that purpose, provided that the [former] wife shall not be obligated to incur any cost in so doing. The [former] wife agrees to investigate the possibility of refinancing the marital residence into her name, and to make application for refinancing if it should be feasible and economically advantageous for her to do so.”

At the trial, the former husband introduced copies of several letters he had had his attorney send the former wife regarding the foregoing provisions. Specifically, the first letter, which was dated December 6, 2004, several months after the February 2004 triggering date for the parties to have the appraisal conducted, requested that the former wife suggest an appraiser to conduct the appraisal contemplated in paragraph 12.d. of the agreement. The former husband testified that the former wife had not responded to those letters. A paralegal who worked for the former husband’s attorney testified that the former wife had telephoned the attorney’s office after she received the first letter and that the former wife had stated that she was unemployed, that she had some medical bills that she had not submitted to the former husband, that there were medical-insurance premiums due that she had not paid, and that therefore she was not responsible. The former wife, on the other hand, testified that she had telephoned the former husband’s attorney and that he had not returned her call. When asked if she could dispute the former wife’s testimony that she had asked for the attorney to return her telephone call, the paralegal stated that she could not.

The former wife also testified that she had told the former husband that, since she was unemployed, if he would pay for the appraisal, she would reimburse him for half of the appraisal fee. The former husband, however, denied that the former wife had asked him to pay the appraisal fee. The former wife also testified that the former husband had refused to discuss the appraisal and that he later had told her to disregard his attorney’s letters. She testified that she could not comply with her obligations because the former husband would not cooperate in determining the amount of his equity. The former wife testified that in 2006 she had the marital residence appraised and that she had contacted the former husband but that he had refused to discuss the issue with her.

The trial court found:
“9. That the Former Wife is hereby found in willful contempt of Court for her willful failure or refusal to comply with [the agreement]. The Former Wife agreed to provide the Former Husband a second mortgage on the ... marital residence and secure the note.... The Former Husband executed a Quitclaim/Warranty Deed in favor of the Former Wife which divested him of all right, title and interest in the marital residence but subject to payment of his equitable interest. The terms and conditions are fully set out in the parties’ agreement. The Former Wife agreed to secure a second mortgage on the home in favor of the Former Husband within three years of the Final Decree of Divorce and fully pay the Former Husband his full equitable interest not later than eight years post-divorce. That time has come and gone and is the basis of the Former Husband’s contempt petition pending before this Court. It is undisputed that the Former Wife refinanced the marital home, increased the amount of the mortgage by more than $42,000, added a second mortgage to the home but failed to pay the Former Husband any equity as agreed.”

The former wife first specifically argues that she did not willfully fail to pay the former husband his portion of the equity because, she says, the trial court extended the time for her to make that payment. See Rule 70A(a)(2)(D), Ala. R. Civ. P. (‘“Civil contempt’ means willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.” (emphasis added)). The record reveals that, at a motion hearing on January 7, 2009, the following exchange took place:

“[ATTORNEY FOR THE FORMER HUSBAND]: Your Honor, there’s one outstanding issue I’m concerned about. The final hearing is set for March 12th, but the order that we’re here on, the marital equity — the equity in the marital residence is due by February. So does the [former] wife pay, and if she does, how much?
“THE COURT: No. Unless you and [the attorney for the former wife] can agree on something with regard to that issue, I think we have to hear it on March 12th. And quite frankly, if you want to hear that issue only on March 12th, then we can do that. But I think until I hear it, unless you agree, I’m going to extend the time and will not hold [the former wife] in contempt of Court because she didn’t do it by the 26th of February when there are things that have been filed. We’ll take a look at the totality of those circumstances.”

Based on that exchange, we conclude that, to the extent that the trial court held the former wife in contempt for failing to pay the former husband his portion of the equity in the marital residence, it exceeded its discretion in doing so.

The former wife also argues that the trial court exceeded its discretion to the extent that it held her in contempt for borrowing additional funds when she refinanced the first mortgage on the marital residence. We agree. There was no provision in the agreement prohibiting the former wife from doing so. Thus, the trial court exceeded its discretion to the extent that it held the former wife in contempt for her borrowing additional funds when she refinanced the first mortgage on the marital home.

The former wife further argues that the trial court exceeded its discretion by finding her in contempt for her failure to give the former husband a second mortgage. We note, however, that much of the evidence was disputed on that issue. “In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief.” Clemons v. Clemons, 627 So.2d 431, 434 (Ala.Civ.App.1993). It was undisputed that the former wife had not executed a second mortgage in the former husband’s favor. The trial court could have believed that the former husband had made an effort to comply with the agreement, albeit not until December 2004, and that the former wife had not. The trial court could have also disbelieved the former wife’s testimony that, after she had obtained an appraisal in 2006, she contacted the former husband to discuss the issue. Thus, the trial court could have concluded that the former wife willfully failed to comply with the provision regarding the second mortgage. We cannot conclude that the trial court exceeded its discretion in finding the former wife in contempt with regard to that provision of the agreement.

The former wife also argues that the trial court erred by finding her in contempt for taking out a second mortgage on the marital residence because, she says, she did not know she was taking out a second mortgage. We note, however, that the trial court could have disbelieved the former wife’s testimony that she did not know she was taking out a second mortgage. Clemons, 627 So.2d at 434. By taking out a second mortgage, the former wife made it impossible to comply with the agreement by giving the former husband a second mortgage. Thus, we find no error in the trial court’s finding her in contempt as to this issue. See, e.g., Hudson v. Hudson, 494 So.2d 664, 666 (Ala.Civ.App.1986) (holding that contempt finding was proper where the former wife “attempted to directly thwart [the divorce judgment] and cloud the title [to certain marital property] by transferring her interest by deed to her sister”).

V. Former Husband’s Equity in the Marital Residence

The former wife also argues that the trial court exceeded its discretion in determining the amount of equity that the former husband is owed by the former wife. The agreement provided that the former husband’s equity “shall be determined by taking the fair market value and subtracting therefrom the then current first mortgage pay-off amount and the anticipated costs of sale, provided, however, that such anticipated costs shall not be greater than 7% of the then current fair market value.” The former wife notes that the trial court accepted a calculation of the equity done by the former husband’s accountant; she argues that the accountant’s calculations do not comport with the agreement. Specifically, she notes that the former husband’s accountant did not take into account the anticipated costs of the sale. She also notes that the former husband’s accountant added 5% interest per annum from February 2004 until December 2009. We agree that the calculation does not comport with the agreement. Thus, we reverse the trial court’s judgment to the extent that it determined the former husband’s portion of the equity in the marital residence, and we remand the cause to the trial court. See Meyer v. Meyer, 952 So.2d 384, 391 (Ala.Civ.App.2006) (quoting Van Allen v. Van Allen, 812 So.2d 1276, 1277 (Ala.Civ.App.2001), quoting in turn R.G. v. G.G., 771 So.2d 490, 494 (Ala.Civ.App.2000)) (“ ‘ “An agreement that by its terms is plain and free from ambiguity must be enforced as written.” ’ ”). On remand, the trial court is instructed to recalculate the former husband’s portion of the equity in accordance with the agreement and this opinion.

VI. Contempt — Former Husband

The former wife next argues that the trial court exceeded its discretion by declining to hold the former husband in contempt. First, she specifically argues that the former husband violated the provision in the agreement requiring him to maintain the children as beneficiaries of his life-insurance policy and to provide to her annually proof that they were designated as beneficiaries. In its judgment, the trial court stated that the parties had advised it that the issue of the former husband’s failure to comply with the provision regarding life insurance was moot because he was in compliance at the time of the trial. As the former wife points out, however, there is nothing in the record to suggest that the former wife had abandoned her contempt claim as to this issue. Accordingly, we reverse the trial court’s judgment, and we remand the cause for the trial court to determine from the evidence whether the former husband should be held in contempt as to this issue.

The former wife also specifically argues that the trial court exceeded its discretion by declining to hold the former husband in contempt for violating certain provisions of the agreement by not treating her child from a previous marriage as a coequal to the parties’ children, by calling her ugly names, and by denying the former wife reasonable telephone access to the children when they were in the former husband’s care. We note, however, that the trial court did not make specific findings of fact on those issues, and the former wife did not present those arguments in her post-judgment motion. Accordingly, we cannot consider her arguments on those issues. See New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala.2004) (“[I]n a nonju-ry case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.”).

The former wife also argues that the former husband was in contempt of the trial court’s pendente lite order requiring that neither party consume alcohol in the presence of the children. We note, however, that the former wife did not move to hold the former husband in contempt on that issue. Further, the trial court did not make a specific finding on that issue, and the former wife did not argue that issue in her postjudgment motion. Thus, we cannot consider it. New Props., L.L.C., 905 So.2d at 801-02.

The former wife finally specifically argues that the trial court erred by failing to hold the former husband in contempt for his alleged failure to reimburse her 50% of the children’s medical expenses as required in the agreement. She also argues that the trial court erred in determining that the former husband did not have to reimburse her for his portion of the children’s expenses. The former husband argues that, with the exception of 1 or 2 times, the former wife had failed to provide him with proof of the claimed expense within 30 days of the date the bill was incurred, as required by the agreement. He also notes that some of the expenses were for orthodontic services, that the agreement provided that the former wife must discuss the need for orthodontic services before incurring those charges, and that the former wife had not discussed the orthodontic services with him. It was undisputed that the former wife had submitted a medical expense for a visit to PriMed within 30 days after it was incurred and that the former husband had declined to pay his share of that expense.

The trial court found that the agreement required the former wife to maintain health insurance for the parties’ children. The evidence indicated that the former wife had lost her job and, therefore, her health insurance. The former husband testified that he had agreed to cover the children under his health-insurance policy, that the former wife was to reimburse him for the increase in premiums, and that the former wife had failed to reimburse him. In the judgment, the trial court determined that the amount the former husband had paid for the health-insurance premiums offset the amount the former husband owed for his share of the children’s medical bills. We can find no error in that reasoning. Thus, we cannot conclude that the trial court erred by declining to hold the former husband in contempt and by declining to order the former husband to reimburse the former wife 50% of the medical expenses that had been incurred by the children.

VII. Attorney Fees

The former wife argues that the trial court exceeded its discretion by ordering her to pay the former husband’s attorney fees and in declining to order the former husband to pay her attorney fees. The agreement provided, in pertinent part:

“19. ENFORCEMENT: If either party violates any provision of this Agreement they shall, upon a judicial determination of such violation, be responsible of payment of all costs, expenses, and attorneys’ fees incurred by the other party in connection with the enforcement hereof.”

“Attorney fees are recoverable when provided for in a contract.” Knox Kershaw, Inc. v. Kershaw, 552 So.2d 126, 129 (Ala.1989). We have previously determined that the trial court exceeded its discretion in determining that the former wife was in contempt for violating various provisions of the agreement. We have also determined that the trial court erred in determining that the issue whether the former husband is in contempt with regard to the life-insurance provision of the agreement is moot. The violation of the agreement is a relevant consideration in the determination whether to award attorney fees. We, therefore, reverse the trial court’s judgment to the extent that it ordered the former wife to pay the former husband’s attorney fees and declined to order the former husband to pay the former wife’s attorney fees. On remand, the trial court is to reconsider the issue of attorney fees.

VIII. Guardian ad Litem and Parenting Coordinator Fees

The former wife finally argues that the trial court exceeded its discretion by ordering her to pay 50% of the guardian ad litem’s fee and 40% of the parenting coordinator’s fee because, she says, the former husband’s conduct necessitated the involvement of the guardian ad litem and the parenting coordinator and because the former husband’s income is greater than hers. She points to the report of the guardian ad litem, which states, in pertinent part:

“[The former wife] has put forth a good faith attempt to try to work with [the former husband] in accommodating his visitation with the children, and in trying to promote their relationship with him. However, I believe that it is highly unlikely that any progress will be made unless and until [the former husband] seeks treatment for his alcohol and anger issues.”

We note, however, that the former wife requested the appointment of the guardian ad litem, and the parties agreed to the appointment of the parenting coordinator. Further, because the parties reached a settlement on the issue of visitation, there was limited evidence presented regarding that issue. Although the former husband earns substantially more than the former wife, the evidence of the former wife’s spending habits shows that the former wife had more income available than her stated income indicated. Accordingly, we cannot conclude that the trial court exceeded its discretion in its apportionment of the fees for the guardian ad litem and the parenting coordinator.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment to the extent that it modified the former husband’s visitation; held the former wife in contempt for failing to pay the former husband his portion of the equity in the marital residence and for borrowing additional funds when she refinanced the first mortgage on the marital residence; determined the amount of the former husband’s portion of the equity in the marital residence; held that the former wife’s claim for contempt regarding the former husband’s alleged failure to comply with the provision of the agreement concerning life insurance was moot; and determined the parties’ entitlement to attorney fees. The trial court’s judgment is affirmed in all other respects. We remand this cause for the entry of a judgment in accordance with this opinion.

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

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

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

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

BRYAN, Judge,

concurring in part, concurring in the result in part, and dissenting in part.

I concur in each part of the main opinion that reverses the judgment of the trial court, specifically those parts of the main opinion regarding: the trial court’s failure to enter a visitation judgment that accurately reflected the agreement of the parties; the trial court’s finding that Cheryl Perdue Freeman (“the former wife”) willfully failed to pay Charles Dewayne Freeman (“the former husband”) his portion of the equity in the former marital residence; the trial court’s finding that the former wife willfully violated the divorce judgment by borrowing additional funds when she refinanced the first mortgage on the marital residence; the trial court’s error in calculating the former husband’s equity in the former marital residence; the trial court’s determination that the former wife’s contempt claim relating to the former husband’s life-insurance policy was moot; and the award of attorney’s fees to the former husband.

Although I believe that the trial court exceeded its discretion by failing to permit the former wife to request discovery related to determining the former husband’s monthly income, I agree that there is undisputed evidence of the former husband’s ability to pay for the needs of the children and, thus, that the trial court’s error, in this particular instance, was harmless. I also agree that this court cannot review any of the issues raised by the former wife on appeal that were not properly preserved for this court’s review. Regarding the parts of the main opinion concerning the retroactive application of the modified child-support award and the medical expenses of the children, I concur in the result only.

However, I respectfully dissent from the remaining conclusions set forth in the main opinion.

      . Only the procedural history relevant to the issues on appeal is included.

      . The 30th day after April 22, 2010, was May 22, 2010, which fell on a Saturday. Thus, pursuant to Rule 6(a), Ala. R. Civ. P., the time for filing a postjudgment motion was extended until Monday, May 24, 2010.

      . The 90th day after May 24, 2010, was August 22, 2010, which fell on a Sunday. Thus, pursuant to Rule 6(a), Ala. R. Civ. P., the former wife’s postjudgment motion was deemed denied by operation of law on Monday, August 23, 2010. See First Alabama Bank v. McGowan, 758 So.2d 1116 (Ala.Civ.App.2000), and Richburg v. Cromwell, 428 So.2d 621 (Ala.1983).

      . The preface to Rule 32 states that the amended rule applies to “all new actions filed or proceedings instituted on or after January 1, 2009. Any actions or proceedings instituted before January 1, 2009, shall be governed by Rule 32 as it read before January 1, 2009.” The present proceeding was instituted before January 1, 2009; thus, Rule 32 as it read before January 1, 2009, is applicable in this case.

      "2 We distinguish divorce proceedings from modification proceedings because we have held that exorbitant spending in itself is not sufficient to prove a substantial and continuing change in circumstances in order to modify a prior judgment of support. Makar v. Makar, 643 So.2d 1378 (Ala.Civ.App.1994). If an obligor participates in and agrees to a certain lifestyle for a child during a marriage, then that obligor should be expected to contribute to the reasonable and necessary needs of the child for the continuation of that lifestyle after divorce.”

      . She testified that the former husband was awarded the parties’ lawn mower in the divorce.

      . The former wife also argues that the trial court improperly considered the fact that her child from a previous marriage had attained the age of 19 years even though, pursuant to the agreement, the former husband had not been required to support that child. We note, however, that the former wife failed to argue this issue to the trial court, and, thus, we cannot consider it on appeal. Kiel, supra; and Andrews, supra.

      . Although the former husband testified that he had had his attorney send the letters, he admitted that he had never asked the former wife if he could send an appraiser to the marital residence.

      . The former husband argues that, because the marital residence was not on the market, this provision was not applicable; however, as the former wife notes, the agreement does not require the marital residence to be on the market in order to trigger the application of that provision.

      . We note that the former wife testified that she had discussed the orthodontic services with the former husband when each child had to have braces. She testified that, when their daughter had to have braces, the former husband stated that he was paying the health-insurance premiums and that he would not pay anything else. She testified that, when their son had to have braces, the former husband stated that he did not "give a damn if he had braces.”

      . The former wife denied that she had agreed to pay the former husband for the premiums. The trial court, however, could have believed the former husband's testimony. See Clemons, supra.