author:
THOMPSON, Presiding Judge.
      BRYAN, Judge,

text:
    Kevin J. KNIGHT v. Sarah J. KNIGHT.
    2090001.
    Court of Civil Appeals of Alabama.
    May 7, 2010.
    Certiorari Denied July 30, 2010 Alabama Supreme Court 1091145.

      Lindsey Mussleman Davis of Holt, Mus-sleman, Kelley & Morgan, Florence, for appellant.
    Terry L. Mock and Andrew L. McGee, Tuscumbia, for appellee.
   THOMPSON, Presiding Judge.

Kevin J. Knight (“the father”) and Sarah J. Knight (“the mother”) were divorced by an August 29, 2008, judgment of the trial court. The divorce judgment incorporated an agreement reached by the parties. Pursuant to the divorce judgment, the parties shared joint legal and physical custody of their minor child.

On February 19, 2009, the mother filed a petition seeking to modify custody of the child, requesting permission to relocate to California with the child and seeking a modification of child support. The father filed an answer in which he objected to the proposed relocation and asserted counterclaims seeking an award of custody of the child and an award of child support.

The trial court conducted a hearing over the course of two days. On September 9, 2009, the trial court entered a judgment in which it awarded primary physical custody of the child to the mother, authorized the mother to relocate with the child to California, and modified the father’s child-support obligation. The father filed a postjudgment motion, and the trial court denied that motion. The father timely appealed.

The record indicates that the parties moved to Alabama some time before the birth of them child in October 2006. The parties’ testimony established that they each grew up in or near Santa Ynez, California, that they went to school there, and that they moved from the Santa Ynez area to Alabama in order for the father to work with his uncle in constructing houses in Alabama. The father’s testimony indicates that the initial plans to work with or for his uncle did not work out and that, thereafter, the father created his own construction business. The father and his business partner construct and remodel homes to sell to others.

The mother owned a clothing store until January 2009. The mother testified that she traveled to California monthly to purchase merchandise for her store and that she often took the child with her on those buying trips. The mother explained that she had a great deal of extended family in the Santa Ynez area and that the mother and the child visited family and friends when they went on buying trips.

The parties divorced in August 2008. The custody agreement incorporated into the parties’ divorce judgment provided that the mother have custody of the child for 7 of 11 days and for the father to have the child for the remaining 4 days of the 11-day period. The mother explained that the parties anticipated that the father would have the child for two consecutive four-day periods when she traveled to California for her business. However, the mother testified that, after the divorce, the father did not exercise all the custodial periods available to him and that, on at least one occasion after the parties’ divorce, she had taken the child with her when she traveled to California. The mother submitted into evidence an exhibit documenting the dates on which she had had custody of the child, the dates on which the father had had custody of the child, and custodial days available to the father that he had not exercised. The mother testified that, after she filed her February 2009 complaint seeking authorization to relocate to California with the child, the father fully exercised his custodial time.

The father disputed that he had not fully exercised his custodial periods. The father stated that he had rescheduled some of the days he was to have the child but that he believed he had not missed any opportunity to have custody of the child.

After the parties moved to Alabama from California, the mother’s sister and parents, who had lived in the Santa Ynez area, also relocated to Alabama to be closer to the parties. The mother explained that her parents are attending college in Alabama in order to obtain their teaching certificates. The mother testified that her sister and the sister’s family had spent a great deal of time traveling between California and Alabama but that her sister and her sister’s family had recently returned to live in California.

The mother testified that she wanted to relocate with the child to California for several reasons. The mother testified that her business had been unprofitable and that she had sold the business. The mother stated that she had attempted to locate employment in Alabama but that her efforts had been unsuccessful. At the time of the hearing in this matter, the mother and the child were living in government-subsidized housing.

The mother testified that she had received an offer for a job in California with a salary of $48,000, plus commissions; the mother stated that she believed her annual income could be as much as $60,000 in that job. According to the mother, the job offer was a position in event sales for a winery. The mother explained that, in addition to the salary, the job was attractive because she would be required to work away from her house for only two days each week; the mother stated that she could work from home for the remainder of the time, which would enable her to spend more time with the child. The mother testified that she could rent a home in Santa Ynez for $500 per month from the parents of a long-term male friend.

The mother presented evidence regarding a Montessori preschool she planned for the child to attend on the days she worked away from her home. The mother stated that, although she had been satisfied initially with the church preschool the child has been attending, she believed that it was in the nature of a “day care.” The mother testified that she believed the child needed more educational opportunities, such as those available at the preschool in California. The mother had also identified a local charter school as a possible elementary school for the child when he reached school age.

The mother also testified regarding the great number of aunts, uncles, cousins, and friends she and the child had in the Santa Ynez area. The mother stated that the extended-family members could provide support if she needed help with the child.

The mother also testified that she has facilitated, and will continue to facilitate, the relationship between the child and the father. It is undisputed that the child speaks on the telephone daily with the parent who does not then have custody of him. The mother testified that she had proposed a custodial arrangement to allow the father visitation with the child if she were allowed to relocate with the child. Pursuant to that proposed agreement, the mother would have the child for four consecutive weeks and the father would have the child for two consecutive weeks. The mother explained that that arrangement would result in the father having only six fewer days per year with the child than he is afforded under the custody arrangement specified in the divorce judgment. The mother also stated that the father often visits California to see friends and family and that he could exercise additional visitation with the child during those times. In addition, the mother proposed that the father use the Internet to have video-telephone conversations with the child.

The parties presented evidence regarding the cost of flying from Alabama to California, and they agreed that an adult would have to fly with the child, who was two years old at the time of the hearing, when he traveled to and from California, thereby increasing the transportation costs. The mother stated that the child enjoyed flying on an airplane. The mother testified that the trip normally took five to six hours, including time for a layover. The mother stated that a direct flight from Alabama to California took only four hours, but she stated that she had never taken a direct flight with the child. The mother explained that she believed the child would do better if he were able to leave the plane during a layover for exercise and a meal.

The father conceded that the mother was a good mother and that she has been the child’s primary caretaker. The father testified that he did not want the child to be removed from Alabama; the father stated that he intended to make Alabama his permanent home and that he wanted the child to be raised in Alabama. In addition, the parties agreed that the father and the child have a close relationship.

The father stated that, because he was self-employed, his schedule was flexible and he could meet the child’s needs. The father presented evidence indicating that the child had been attending a church day care or preschool while in Alabama and that the child could continue to do so until he reached school age. The father presented evidence concerning a private school he wanted the child to attend when the child reached school age.

The father also stated that, when necessary, he could leave the child in the care of the father’s mother, who lived nearby. The father admitted that the mother was concerned about leaving the child with the paternal grandmother, who has a felony drug conviction. However, the father stated that he would not leave the child with the paternal grandmother if he had any concerns about her ability to properly care for the child. The father also testified that the child was close to the father’s nine-year-old brother.

In addition, the father testified that the mother’s parents would be willing to help him with the child if necessary. The mother’s father testified, however, that he anticipated that he and the child’s maternal grandmother would return to California if the mother was allowed to relocate; he explained that the mother’s sister had already returned to California and that he and his wife wanted to be near their children and grandchildren.

The father testified that he believed that the mother lived an extravagant lifestyle that was beyond her financial means. The mother alleged that the father had been controlling during their marriage and that she believed he was continuing to attempt to control her after their divorce. The father disputed that the mother could not find employment in Alabama, and he questioned whether she had truly attempted to do so. The father presented evidence indicating that one of the mother’s former employers had job openings for positions with salaries in the range of $25,000 to $40,000 per year. The operator of that business acknowledged that the mother had earned only $22,000 per year when she was employed with his business, and he stated that he was not offering the mother a $40,000 per year job.

The father indicated that he had traveled to the Santa Ynez area twice in the year since the parties’ divorce. We note that, on one of those trips, the father was accompanied by his girlfriend and that, during that trip, the mother and the child were also in California. The father conceded that he did not attempt to see the child in the five days he was in California during that trip. Rather, the father admitted that he spent much of that time following the mother, surveilling the home of the man with whom he suspects the mother is involved, and asking questions of the mother’s prospective employer.

At the close of the hearing in this matter, the trial court noted, with regard to the issues of custody and the proposed relocation:

“I will say this to both of you. This is one of those cases that judges hate. Two good people. Two good parents, and no good solutions, so whatever I decide is going to be tough. I will do my best, but there is not a good guy and abad guy....”

In addition to their evidence on the issue of custody and the proposed relocation, the parties also presented evidence regarding their earnings for the purpose of calculating child support. The mother’s evidence indicated that she anticipated earning a salary of $48,000 per year. The father testified that he earned in the range of $2,000 to $3,000 per month; the record does not indicate whether that estimate was gross income or net income. In response to discovery requests, the father indicated that he had earned $19,000 for the year as of May 2009.

In addition, the mother submitted into evidence the father’s bank statements. Those bank statements indicate that large amounts of money were deposited or transferred into the father’s bank accounts each month. The father admitted that between January and June 2009, approximately $150,000 had been deposited or transferred into his checking account. The father explained that many of those funds were used to purchase construction supplies for the construction or remodeling jobs on which he was working. The father testified that he does not know how much of that money he used for his personal expenses versus his business expenses. The father explained that he usually went through his banking statements only two times per year.

The mother submitted into evidence a list, compiled from the father’s banking statements, of the father’s expenditures that she maintained did not include construction expenses. The father did not dispute the mother’s calculations. The father stated, however, that many restaurant expenses reflected on the mother’s exhibit included costs for clients. The father’s nonbusiness expenses for the first six months of 2009, as calculated in the mother’s exhibit, averaged more than $9,700 per month.

In its judgment in this matter, the trial court determined, among other things, that the mother’s income was $4,166.66 per month, which equates to an annual income of $50,000. The trial court found the father’s income to be $4,222.22 monthly, which is equivalent to an annual gross income of approximately $51,000.

On appeal, the father first argues that the trial court erred in awarding the mother primary physical custody of the child and allowing her to relocate with the child to California. The Alabama Parent-Child Relationship Protection Act (“the Act”), § 30-3-160 et seq., Ala.Code 1975, governs actions in which a parent seeks to relocate to another jurisdiction with a child of the parties. In his brief on appeal, the father asserts arguments pertaining to whether each party met his or her purported burden under § 30-3-169.4, Ala. Code 1975, which provides:

“In proceedings under this article unless there has been a determination that the party objecting to the change of the principal residence of the child has been found to have committed domestic violence or child abuse, there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”

In this case, after their divorce, the parties shared joint legal and physical custody of the child. See § 30-3-151(3), Ala.Code 1975 (“Joint physical custody does not necessarily mean physical custody of equal durations of time.”). Thus, the child “had two principal residences, one with the father and one with the mother.” Marsh v. Smith, 37 So.3d 174, 176 (Ala.Civ.App.2009).

With regard to reviewing a case in which a trial court has received ore tenus evidence, this court has stated:

“[Wjhere a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness. See Scholl v. Parsons, [655 So.2d 1060 (Ala.Civ.App.1995)]. ‘The presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate them credibility and demeanor.’ Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). This court is not permitted to reweigh the evidence on appeal and to substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000); see also Ex parte Perkins, 646 So.2d 46 (Ala.1994).”

Clements v. Clements, 906 So.2d 952, 959 (Ala.Civ.App.2005) (emphasis added).

In this case, the record supports a conclusion that the mother has been the primary caretaker for the child, who was not yet three years old at the time the judgment in this matter was entered. The mother’s testimony indicated that she had available to her a good job in California that also allowed her flexibility to spend time with the child. The mother presented evidence indicating that the child could attend an educational preschool program in California. In addition, the mother presented evidence indicating that the child was familiar with California, that the child had spent a great deal of time there, and that there were a number of family members in California to support the mother in caring for the child. In addition, the mother’s father indicated that the mother’s parents would likely move back to California if the mother returned there.

The mother also presented evidence indicating that she had encouraged and assisted the child in maintaining his relationship with the father, and she testified that she would continue to do so. The mother submitted an exhibit demonstrating that, until she filed her complaint seeking a modification of custody and permission to relocate, the father had failed to exercise all of his custodial periods. The visitation schedule proposed by the mother if she were allowed to move, which was adopted by the trial court in its September 9, 2009, judgment, affords the father significant time with the child.

The trial court made no findings with regard to whether the parties had met their respective burdens under the Act with regard to the proposed change to the child’s principal residence. “[W]hen the trial court’s judgment does not contain specific findings of fact, this court must assume that the trial court made those findings of fact necessary to support its judgment.” Steed v. Steed, 877 So.2d 602, 603 (Ala.Civ.App.2003) (citing Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996)).

In Clements v. Clements, supra, this court rejected an argument that the trial court had impermissibly placed the initial burden under the Act on the nonrelocating parent. In doing so, this court concluded:

“In the instant case, the record contains evidence from which the trial court could have found that the mother had rebutted the presumption that the change in principal residence was not in the child’s best interest. The mother presented evidence indicating that she was the child’s primary caregiver; that she supported the furtherance of the child’s education; and that the move to New York would offer the child more cultural opportunities. Thus, under § 30-3-169.4 the burden shifted to the father to demonstrate that a change in principal residence is not in the best interest of the child.”

Clements v. Clements, 906 So.2d at 957.

Similarly, in this case, the mother presented evidence indicating the difficulties she had had obtaining employment in Alabama, the advantages for her and the child of moving to California, and her efforts to facilitate the relationship between the father and the child. The father presented evidence in support of his arguments opposing the proposed relocation. However, “because the trial court received evidence ore tenus, ‘we must view “ ‘the evidence in the light most favorable to the prevailing part[y].’ ” ’ ” Nichols v. Nichols, 4 So.3d 491, 493 (Ala.Civ.App.2008) (quoting Diggs v. Diggs, 910 So.2d 1274, 1275 (Ala.Civ.App.2005), quoting in turn Architectura, Inc. v. Miller, 769 So.2d 330, 332 (Ala.Civ.App.2000), quoting in turn Driver v. Hice, 618 So.2d 129, 131 (Ala.Civ.App.1993)). As stated earlier, it is the trial court, and not this court, that has the duty of assessing the credibility of those who testify and in determining the weight to be afforded to the evidence presented to it. Clements v. Clements, 906 So.2d at 959. This court may not base its judgment on its interpretation of the evidence presented to the trial court. Rather, it is well settled that “ ‘[i]t is our duty to affirm the trial court’s judgment if it is fairly supported by credible evidence, “regardless of our own view of that evidence or whether we would have reached a different result had we been the trial judge.” ’ ” Sankey v. Sankey, 961 So.2d 896, 901 (Ala.Civ.App.2007) (quoting Griggs v. Griggs, 638 So.2d 916, 918-19 (Ala.Civ.App.1994), quoting in turn Young v. Young, 376 So.2d 737, 739 (Ala.Civ.App.1979)). After reviewing the record on appeal and affording the trial court’s judgment the deference required by the ore tenus standard, we conclude that the record “contains evidence from which the trial court could have found that the mother had rebutted the presumption that the change in principal residence was not in the child’s best interest.” Clements v. Clements, 906 So.2d at 957.

The burden then shifted to the father to demonstrate that the proposed relocation was not in the child’s best interests. § 30-3-169.4, Ala.Code 1975. The father cites Nichols v. Nichols, supra, in support of his argument that the trial court erred in allowing the proposed relocation. In that case, the trial court sustained the father’s objection to the mother’s proposed relocation with their seven-year-old child to Maryland. In doing so, the trial court found that the mother had rebutted the presumption that the relocation would not be in the child’s best interests, but it then found that, after the burden had shifted to the father, the father had demonstrated that the proposed move was not in the child’s best interests. This court affirmed the trial court’s judgment, citing the ore tenus rule, and noting that the record showed that

“[the father] introduced evidence establishing that he, his family, and the mother’s family are all actively involved in the child’s life; that the child benefits greatly from their involvement in her life; and that that involvement would be significantly reduced if the mother moves the child to Potomac. At the same time, the father introduced evidence establishing that the involvement of the stepfather and the stepfather’s family in the child’s life would not compensate for the reduced involvement of the father, the father’s family, and the mother’s family in the child’s life.”

Nichols v. Nichols, 4 So.3d at 495.

In this case, the father presented evidence indicating that his work schedule is also flexible, that the child could remain in his current preschool, and that the father has family in the area that can assist him in caring for the child. Although both parties have family in Alabama, the parties did not present evidence, as did the parties in Nichols v. Nichols, supra, of a particularly close relationship between the child and his extended-family members. Also, the father indicated that part of his support system was to be the mother’s parents; however, the mother’s father stated that he and his wife would likely relocate to be near the mother and child.

The father testified that he and the child share a close relationship and that the proposed move would prevent him from being involved in the future in the child’s daily activities, such as school and extracurricular activities. The father disputed the mother’s evidence indicating that he had not exercised all the custodial time available to him. However, as stated earlier, it is the trial court, and not this court, that has the duty of assessing the credibility of those who testify and in determining the weight to be afforded to the evidence presented to it. Clements v. Clements, 906 So.2d at 959. The evidence would support a conclusion that the father began regularly exercising his full visitation rights only after the mother initiated this action. Further, the father admitted that rather than visit the child when he, the mother, and the child were all in California at the same time, he spent that time following and investigating the mother.

In this case, the trial court determined that allowing the child to relocate with the mother served the child’s best interests. Implicit in that finding is a determination that the father had not rebutted the mother’s presentation of evidence in favor of the proposed relocation. See § 30-3-169.4, Ala.Code 1975; Ex parte Bryowsky, 676 So.2d at 1324 (holding that the appellate courts must presume that a trial court made the factual findings necessary to support its judgment); see also Ex parte Blackstock, 47 So.3d 801, 806 (Ala.2009) (concluding that a finding that the mother had met the applicable burden of proof for a modification of custody was implicit in the trial court’s judgment). Viewing the evidence in a light most favorable to the mother, as the prevailing party, see Nichols v. Nichols, supra, we cannot say that the trial court’s determination was “so unsupported by the evidence as to be plainly and palpably wrong.” Clements v. Clements, 906 So.2d at 957. Accordingly, we must conclude that the father has failed to demonstrate that the trial court erred in determining that that the child’s best interests would be served by allowing the proposed relocation.

The father also challenges the trial court’s custody determination. The Act sets forth a number of factors for the trial court to consider in determining whether to modify custody once the trial court approves the proposed change in principal residence. Section 30-3-169.3, Ala.Code 1975, sets forth those factors and provides:

“(a) Upon the entry of a temporary order or upon final judgment permitting the change of principal residence of a child, a court may consider a proposed change of principal residence of a child as a factor to support a change of custody of the child. In determining whether a proposed or actual change of principal residence of a minor child should cause a change in custody of that child, a court shall take into account all factors affecting the child, including, but not limited to, the following:
“(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate with the child and with the non-relocating person, siblings, and other significant persons or institutions in the child’s life.
“(2) The age, developmental stage, needs of the child, and the likely impact the change of principal residence of a child will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
“(3) The increase in travel time for the child created by the change in principal residence of the child or a person entitled to custody of or visitation with the child.
“(4) The availability and cost of alternate means of communication between the child and the non-relocating party.
“(5) The feasibility of preserving the relationship between the non-relocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
“(6) The preference of the child, taking into consideration the age and maturity of the child.
“(7) The degree to which a change or proposed change of the principal residence of the child will result in uprooting the child as compared to the degree to which a modification of the custody of the child will result in uprooting the child.
“(8) The extent to which custody and visitation rights have been allowed and exercised.
“(9) Whether there is an established pattern of conduct of the person seeking to change the principal residence of a child, either to promote or thwart the relationship of the child and the non-relocating person.
“(10) Whether the person seeking to change the principal residence of a child, once out of the jurisdiction, is likely to comply with any new visitation arrangement and the disposition of that person to foster a joint parenting arrangement with the non-relocating party.
“(11) Whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the change of principal residence of the child and the child, including, but not limited to, financial or emotional benefit or educational opportunities.
“(12) Whether or not a support system is available in the area of the proposed new residence of the child, especially in the event of an emergency or disability to the person having custody of the child.
“(13) Whether or not the proposed new residence of a child is to a foreign country whose public policy does not normally enforce the visitation rights of non-custodial parents, which does not have an adequately functioning legal system, or which otherwise presents a substantial risk of specific and serious harm to the child.
“(14) The stability of the family unit of the persons entitled to custody of and visitation with a child.
“(15) The reasons of each person for seeking or opposing a change of principal residence of a child.
“(16) Evidence relating to a history of domestic violence or child abuse.
“(17) Any other factor that in the opinion of the court is material to the general issue or otherwise provided by law.
“(b) The court making a determination of such issue shall enter an order granting the objection to the change or proposed change of principal residence of a child, denying the objection to the change or proposed change of principal residence of a child, or any other appropriate relief based upon the facts of the case.
“(c) The court, in approving a change of principal residence of a child, shall order contact between the child and the non-relocating party and telephone access sufficient to assure that the child has frequent, continuing, and meaningful contact with the non-relocating party and shall equitably apportion transportation costs of the child for visitation based upon the facts of the case.
“(d) The court, in approving a change of principal residence of a child, may consider the costs of transporting the child for visitation and determine whether a deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation.
“(e) The court, in approving a change of principal residence of a child, may retain jurisdiction of the parties and of the child in order to supervise the transition caused by the change of principal residence of the child; to insure compliance with the orders of the court regarding continued access to the child by the non-relocating party; to insure the cooperation of the relocating party in fostering the parent-child relationship between the child and the non-relocating party; and to protect the relocating party and the child from risk of harm in those cases described in Section 30-3-167.”

The father cites Sankey v. Sankey, 961 So.2d 896 (Ala.Civ.App.2007), in support of his contention that the trial court erred in awarding the mother primary physical custody and allowing her to relocate to California with the child. In Sankey v. Sankey, supra, the custodial parent, the mother, sought to relocate with the children to another state because she planned to marry a member of the armed forces who was to be stationed in Texas. The father opposed the proposed relocation and sought a modification of custody. In that case, the mother presented no evidence regarding any positive impact the move to Texas might have on the children, and the trial court concluded that the mother had not met her initial burden under the Act. Regardless, the trial court stated that, even if the mother had met her burden under the Act, it still would have granted the father’s claim seeking a modification of custody. 961 So.2d at 899. The evidence indicated that the children enjoyed a close relationship with the father and with their grandparents, who lived in the area; that the father had encouraged the children’s relationship with the mother but that she had attempted to interfere with the father’s relationship with the children; and that the mother’s behavior since the parties’ divorce had not been in the children’s best interests. Accordingly, citing the ore tenus rule and the presumption in favor of the correctness of the trial court’s judgment, this court affirmed the trial court’s determination that the mother had not rebutted the presumption set forth in the Act, and, again citing the ore tenus rule, it affirmed the modification of custody of the children. Sankey v. Sankey, 961 So.2d at 903.

In this case, the parties shared joint legal and physical custody of the child, and, therefore, there had been no prior custody determination. Accordingly, the trial court correctly applied the “best interest of the child” standard in determining custody. See Hovater v. Hovater, 577 So.2d 461, 464 (Ala.Civ.App.1990) (holding that the “best interest of the child” standard applies when there is no prior judgment granting primary physical custody to one parent). Our supreme court has recently reiterated that,

“[w]here, as in the present case, there is a prior judgment awarding joint physical custody, ‘ “the best interests of the child” ’ standard applies in any subsequent custody-modification proceeding. Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994) (quoting Ex parte Couch, 521 So.2d 987, 989 (Ala.1988)). To justify a modification of a preexisting judgment awarding custody, the petitioner must demonstrate that there has been a material change of circumstances since that judgment was entered and that ‘ “it [is] in the [child’s] best interests that the [judgment] be modified” ’ in the manner requested. Nave v. Nave, 942 So.2d 372, 376 (Ala.Civ.App.2005) (quoting Means v. Means, 512 So.2d 1386, 1388 (Ala.Civ.App.1987)).”

Ex parte Blackstock, 47 So.3d at 804-05.

We note that much of the evidence the parties submitted and discussed with regard to the issue whether the mother should be allowed to relocate with the child is also pertinent to the issue whether the trial court erred in refusing to award primary physical custody of the child to the father.

As stated earlier, the record supports a conclusion that the mother has been the primary caretaker for the child. The mother also presented evidence indicating that she had encouraged and assisted the child in maintaining his relationship with the father, and she testified that she would continue to do so. The mother testified that she wanted to move because of the job opportunity and to be close to her extended family in California. Both parties have ties to California, and the child has a great deal of extended family there. The mother presented evidence indicating that she had a good job opportunity that would allow her flexibility to spend a great deal of time with the child.

The mother proposed a visitation schedule that would allow the father only six fewer days per year with the child in Alabama. The mother also testified that she would work with the father to allow him additional visitation during the times he visits California.

The father testified that he wanted to be able to take part in the child’s daily activities, which he could not do if the child lived in California with the mother. The father stated that he enjoyed a close relationship with the child, and he disputed the mother’s allegation that he had not exercised his full custodial rights before the mother initiated this action. However, the father admitted that he had spent five days in California following the mother and had not taken advantage of the mother’s offer to allow him to visit the child during that time. Thus, the trial court could have questioned the credibility of the father’s statements that he had fully exercised his custodial time with the child before the mother initiated this action and his denial that he was attempting to exercise control over the mother.

This case, like Sankey v. Sankey, supra, and Nichols v. Nichols, supra, involves the application of the ore tenus rule. In both of those cases, this court, citing the ore tenus rule, affirmed the trial courts’ judgments. The father insists that the evidence does not support the trial court’s judgment in this case. However, our supreme court has recently reiterated the limited nature of an appellate court’s review of a judgment reached by the trial court after the trial court received ore tenus evidence:

“As this Court Stated in Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996), quoted in part in Lamb [v. Lamb, 939 So.2d 918 (Ala.Civ.App.2006) ], in an ore tenus proceeding,
“ ‘[t]he trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing. See Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), wherein this Court, quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993), set out the well-established rule:
“ ‘ “ ‘Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, ... and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow....””
676 So.2d at 1324; see Lamb, 939 So.2d at 922; see also Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003) (‘[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.’ (citation omitted)).
“ ‘ “[T]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.” Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997) (quoting Ex parte Bryowsky, 676 So.2d at 1326). ‘Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court’s judgment.’ Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007) (citing Ex parte Patronas) (emphasis added). Under the ore tenus rule, where the conclusion of the trial court is so opposed to the weight of the evidence that the variable factors of a witness’s demeanor and credibility and the inferences that can be drawn from the evidence, even after considering those factors, ‘ “ ‘could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.’ ” ’ Cheek, 1 So.3d at 1029 (quoting B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App.1999), quoting in turn Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979) (emphasis added)).”

Ex parte Blackstock, 47 So.3d at 805-06 (first emphasis added).”

As the trial court noted at the close of the evidence, this is a close case. It is clear that both parties are good parents and that they each love the child. The trial court, after considering the ore tenus evidence, found that awarding custody to the mother and allowing the proposed change of principal residence was in the child’s best interests. Given our standard of review and the record on appeal, we cannot say that the father has demonstrated that there is no evidence to “reasonably substantiate” the trial court’s custody determination. Ex parte Blackstock, 47 So.3d at 806. Accordingly, we affirm that part of the trial court’s judgment awarding the mother primary physical custody of the child.

The father also argues that the trial court erred in increasing his child-support obligation from $225 per month to $690.50 per month. The father first takes issue with the trial court’s determination of his gross monthly income, which the trial court found to be $4,222.22. The father argues that he presented evidence indicating that his income was $2,000 to $3,000 per month. We note that in his post-judgment motion the father alleged that his gross monthly income was $3,167 per month.

The father is self-employed. Rule 32, Ala. R. Jud. Admin., defines “self-employment income” as follows:

“(a) For income from self-employment, rent, royalties, proprietorship of business, or joint ownership of partnership or closely held corporation, ‘gross income’ means gross receipts minus ordinary and necessary expenses required to produce this income, as allowed by the Internal Revenue Service, with the exceptions noted in subsection (B)(3)(b).”

Rule 32(B)(3)(a), Ala. R. Jud. Admin.

The father’s testimony concerning the issue of child support, for which he also asserted a claim seeking modification, could be interpreted as evasive. The father testified only that his monthly income from draws from his construction business averaged $2,000 to $3,000; he did not specify whether those figures represented gross income or net income. Other than his own testimony regarding his estimate of his monthly income, the father did not attempt to present any evidence regarding his income.

The mother presented evidence in an attempt to rebut the father’s testimony regarding the amount of his personal income. The mother submitted into evidence the father’s banking records, which demonstrate large deposits and expenditures for the father’s business and which also demonstrate the father’s personal expenditures. The mother’s evidence showed that the father paid an average of $9,700 a month in personal expenses in the six months before the final hearing. It is clear that the father, in operating his business, has intermingled his business finances and his personal finances. The father did not present evidence, either for his business finances or for his personal finances, to counter the mother’s evidence pertaining to his income and expenditures. Likewise, on appeal, the father does not make any effort to explain the complicated evidence pertaining to his finances.

In Klapal v. Brannon, 610 So.2d 1167 (Ala.Civ.App.1992), the self-employed father claimed to have approximately $27,000 in annual income; however, his income-tax returns indicated a profit for his business of more than $50,000. This court rejected the father’s argument that the trial court had erred in considering the business’s gross income in determining his income for the purpose of calculating child support. The court noted that, “[wjhen earnings are from self-employment, ‘gross income’ means gross business receipts minus ordinary and necessary business expenses.” Klapal v. Brannon, 610 So.2d at 1170 (citing former Rule 32(B)(3)(I), which is now Rule 32(B)(3)(a), Ala. R. Jud. Admin.).

In Davidson v. Davidson, 643 So.2d 1001 (Ala.Civ.App.1994), the father, a self-employed electrician, testified that because the mother had the parties’ income-tax returns, he did not know his yearly income. The mother testified that the father’s income was $25,000. After a remand to comply with the Rule 32, Ala. R. Jud. Admin., child-support guidelines, the parties submitted income affidavits in which the father represented his gross income as being $1,000 per month, and the mother represented her income as being $947 per month. The trial court based its child-support determination on a finding that the father earned $2,000 per month and the mother earned $1,290 per month. This court affirmed the child-support award, concluding that “the trial court was within its discretion to determine the monthly gross income of the parties and that it correctly applied the Child Support Guidelines.” Davidson v. Davidson, 643 So.2d at 1004.

It is not clear from the record the exact method by which the trial court determined the father’s monthly gross income. However, the trial court had before it evidence pertaining to the income and expenditures of the father’s business. See Klapal v. Brannon, supra. Given that evidence and its observations of the father as he testified, the trial court could have determined that the father’s testimony concerning the amount of his income from his business lacked credibility. See Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999) (“The presumption of correctness [in favor of a trial court’s judgment pursuant to the ore tenus rule] is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.”). Further, in considering the level of a support-paying parent’s income, the trial court may also consider any portion of that parent’s business income that is reinvested in the business rather than paid out to the parent as a draw. Brown v. Brown, 960 So.2d 712, 716 (Ala.Civ.App.2006).

Given the evidence in the record on appeal and the father’s argument pertaining to his income for the purposes of calculating his child-support obligation, we cannot say that the father has demonstrated that the trial court exceeded its discretion in determining his gross monthly income. Davidson v. Davidson, supra; see also Neny v. Neny, 989 So.2d 565, 571 (Ala.Civ.App.2008) (“The trial court could have determined that, notwithstanding the mother’s testimony that she paid herself a salary in the $30,000 to $40,000 range, her income, for purposes of Rule 32(B)(3)(a), was considerably higher.”).

The father has not asserted that, assuming that the trial court did not err in determining the amount of his gross monthly income, the trial court erred in its calculation of child support pursuant to the Rule 32, Ala. R. Jud. Admin., child-support guidelines. Our review reveals that, given the parties’ incomes as determined by the trial court in its September 9, 2009, judgment, as well as the undisputed costs of child care and health insurance for the child, the trial court properly calculated the father’s child-support obligation pursuant to those guidelines.

We note that the father asserts that the Rule 32 child-support guidelines allow for a deviation from those guidelines in situations in which “[extraordinary costs of transportation for purposes of visitation [are] borne substantially by one parent.” Rule 32(A)(1)(b), Ala. R. Jud. Admin, (emphasis added). The father contends that no allocation of the costs of transportation was included in the trial court’s determination of his child-support obligation. However, the father did not argue before the trial court that a deviation from the Rule 32 child-support guidelines was warranted, and he may not assert that argument for the first time on appeal. See Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992) (“Our review is limited to the issues that were before the trial court — an issue raised on appeal must have first been presented to and ruled on by the trial court.”); and Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (“[An appellate court] will not reverse the trial court’s judgment on a ground raised for the first time on appeal.”).

Also, as the mother correctly points out in her brief submitted to this court, the trial court, as part of its September 9, 2009, judgment, ordered that the mother pay 60% of all costs associated with transporting the child for visitation with the father and that the father pay the remaining 40% of those costs. Thus, we cannot say that the father has demonstrated that he is the party required to “substantially [bear]” the cost of visitation-related transportation.

The father last argues that the trial court erred in failing to conduct a hearing on his postjudgment motion. Such a hearing is required when it is requested. Rule 59(g), Ala. R. Civ. P. However, the failure to conduct a hearing on a postjudgment motion is not necessarily reversible error. Kitchens v. Maye, 623 So.2d 1082, 1089 (Ala.1993).

“Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.”

Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989). In this case, we have already determined that the father has failed to demonstrate error with regard to those issues that were presented to the trial court in his postjudgment motion. Accordingly, we decline to reverse the trial court’s judgment based on its failure to conduct a hearing on the father’s post-judgment motion. Kitchens v. Maye, supra; Greene v. Thompson, supra.

AFFIRMED.

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

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

BRYAN, Judge,

concurring in part and dissenting in part.

I concur in the main opinion insofar as it affirms the calculation of the father’s child-support obligation. However, I respectfully dissent from the conclusion reached by a majority of this court that Sarah J. Knight (“the mother”) overcame the presumption found in § 30-3-169.4, Ala.Code 1975, so as to shift the burden of proof to Kevin J. Knight (“the father”). Because I do not agree that the principal residence of the child should have been relocated, I do not believe that the factors set forth in § 30-3-169.3 should have been considered by the trial court. Thus, I would remand the cause to the trial court for consideration of the father’s counterclaim for custody of the child in light of the fact that the child’s principal residence would not be relocated. Because the majority also holds that the trial court’s failure to conduct a hearing on the father’s postjudgment motion was harmless error, citing Kitchens v. Maye, 623 So.2d 1082, 1089 (Ala.1993), and Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989), I must dissent from that conclusion as well.

As detailed in the main opinion, this case involves the proposed relocation of the principal residence of a child. The mother and the father were divorced by the Laud-erdale Circuit Court on August 29, 2008. Pursuant to an agreement of the parties, the trial court awarded the parties joint legal and physical custody of the parties’ minor child, who was born in October 2006. The parties agreed to a custody schedule according to which, in an 11-day cycle, the mother would exercise physical custody of the child for 7 days and the father would exercise physical custody of the child for 4 days.

Only five months after the joint-custody agreement of the parties was incorporated into the divorce judgment, the mother initiated an action to modify custody of the child and to modify child support. The mother also requested permission to relocate with the child to Santa Ynez, California. The father filed an answer in which he objected to the child’s proposed change of residence, and he filed counterclaims for custody of the child and an award of child support.

The evidence revealed that both parties were good parents and that neither party had any complaints about the other party’s ability to parent the child. The mother and the father are originally from California, and the mother still has a significant amount of family near the Santa Ynez area. Her parents, who at the time of the hearing lived in Florence, Alabama, were attending the University of North Alabama, but the mother’s father testified that he and the mother’s mother intended to return to California after they graduated. The father also has family in Florence, including his mother, who has babysat the child, and his younger brother, who is close to the child.

The mother wanted to move to Santa Ynez because she was offered a job earning approximately $50,000 a year. The mother stated that her clothing business had failed and that she had not been able to locate a job in Florence. The mother stated that relocating to California would benefit the child because she would be more financially capable of caring for the child, because she and the child would have a strong support system in California, and because she would be able to enroll the child into what the mother perceived as a better school. She stated that the father and the child would be able to maintain consistent contact with' one another because they could use Skype, which is a means of talking via a computer using a Web camera.

The mother alleged that she had been the primary caretaker of the child and that the father had not exercised all of his allotted visitation with the child. The father denied missing visitation with the child. However, there was no dispute about the father’s close relationship with the child. The father testified that he desired to maintain a close relationship with the child because he had not had the benefit of a relationship with his father. The father is self-employed and financially stable.

The Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala. Code 1975 (“the Act”), governs the outcome of this case. In the Act, our legislature set forth the general philosophy of the State of Alabama that was initially established in § 30-3-150, Ala.Code 1975, which is “that children need both parents, even after a divorce.” § 30-3-160, Ala.Code 1975 (emphasis added). Section 30-3-150, which sets forth this state’s policy regarding joint custody, provides:

“It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shoum the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody.”

(Emphasis added.)

To further this underlying general philosophy, our legislature, in the Act, required that:

“In proceedings under this article unless there has been a determination that the party objecting to the change of the principal residence of the child has been found to have committed domestic violence or child abuse, there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”

Ala.Code 1975, § 30-3-169.4 (emphasis added).

I believe that the Act was enacted for just such a case as this. I agree with then Judge Murdock’s statement in his special writing in Toler v. Toler, 947 So.2d 416, 424 (Ala.Civ.App.2006), that “the Act adopts a new presumption and new rules of decision, including those in §§ 30-3-169.3 and 30-3-169.4, obviously intended to discourage unnecessary relocations by custodial parents that would make the maintenance of relationships between a child and both of his or her parents less likely or less fully realized.” (Murdock, J., concurring specially). The rebuttable presumption found in § 30-3-169.4 is not a minimal presumption to overcome. The standard, as supported by the enunciation of the public policy of this State in § 30-3-150 and § 30-3-160, is that the child needs both parents. In order to overcome this standard and in order to overcome the burden set forth in § 30-3-169.4, the parent seeking to relocate the principal residence of the child has a significant hurdle to overcome. This hurdle cannot be overcome by evidence indicating merely that the relocating parent will have a higher-paying job and a “support group” out of state.

The undisputed facts in this case reveal that the father is an excellent parent, that the father has a strong bond with the child, that the father has consistently provided support for the child, and that the father desires to maintain a close relationship with the child. I sympathize with the situation of the mother and her desire to better her financial circumstances, and there is no doubt that the child’s relocation to Santa Ynez would provide some benefit to the child. I simply cannot conclude, as the majority of this Court does, that the mother met her burden of proof pursuant to § 30-3-169.4. In my opinion, this case is the epitome of a case involving an unnecessary move that will make it difficult for the father to maintain a strong relationship with the child. I believe that the child’s maintenance of a strong relationship with the father overshadows any alleged benefit that would occur upon the child’s relocation to California.

Tellingly, I am not convinced that “video-telephone conversations” between the father and the child will compensate for the fact that the child will not have regular, meaningful, face-to-face contact with the father. Nor do I believe that an award of visitation that allows the father to have almost as many visitation days as he exercised while the child lived in Alabama will replace the fact the father simply will not be able to participate in the irreplaceable milestones in the child’s life such as school activities, sports activities, and church activities, as well as a laundry list of other “firsts” that the father will not be present for, especially after the child begins school full-time in California. The father specifically expressed his desire to maintain a close and meaningful relationship with the child, his son, because the father had not had the benefit of a close relationship with his father. The decision to allow a change in the principal residence of the child negates any realistic possibility of the father’s maintaining the same type of relationship that he now shares with the child.

I do not take lightly this court’s duty to presume that factual findings made by a trial court are correct. However, after review of the record in this case, I fear that the policy of this state, which is to encourage frequent and continual contact between a child and both of his or her parents after a divorce, is disintegrating under a mistaken belief that a relocating parent does not have a significant burden to overcome, especially in cases such as this where the nonrelocating parent and the child have a strong bond.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Diane Helen ALLEN v. Mark James ALLEN.
    2090098.
    Court of Civil Appeals of Alabama.
    May 7, 2010.
    Rehearing Denied July 10, 2010.

      Tim W. Milam, Tuscumbia, for appellant.
    Sheila F. Morgan, Tuscumbia, for appel-lee.
   THOMAS, Judge.

Diane Helen Allen (“the wife”) and Mark James Allen (“the husband”) were married in 1985. In May 2007, the husband sued the wife for a divorce. The parties attempted to mediate an agreement; however, the mediation was ultimately unsuccessful. After a trial in May 2008, the trial court divorced the parties on the ground of incompatibility, awarded the wife a 1981 Corvette automobile, awarded the husband a 2006 Ford Expedition sport-utility vehicle and made him solely responsible for the $33,000 to $34,000 debt associated with that vehicle, made the husband responsible for the payment of a $3,500 credit-union loan, awarded the husband a restored 1984 Chris Craft boat, and awarded the parties the remaining personal property in their respective possession at the time of the trial. The trial court further ordered that the marital residence remain on the market and be sold. The judgment required that the proceeds of the sale be used first to exhaust the mortgage debt associated with the marital residence and then to pay off credit-card debt accumulated by the parties; any remaining proceeds from the sale of the marital residence, which were expected to be around $30,000, were awarded to the wife. The husband was to be responsible for the mortgage payments on the marital residence until its sale. Pursuant to the judgment, after the sale of the marital residence was accomplished, the husband would be required to pay the wife $600 per month in alimony until his retirement, after which the wife would receive certain pension benefits.

The wife appealed from the divorce judgment; on August 11, 2009, we dismissed the appeal because two outstanding contempt motions had not been addressed by the trial court. Allen v. Allen (No. 2071113, Aug. 11, 2009), - So.3d - (Ala.Civ.App.2009) (table). The trial court denied the contempt motions in an amended judgment entered on October 7, 2009, and the wife appeals a second time. On appeal, the wife argues essentially that the trial court abused its discretion in three ways: by not granting a divorce on the ground of adultery, by not awarding the wife the marital residence, and by not awarding the wife a sufficient amount of alimony. The wife also appeals the denial of an award of attorney fees by the trial court and requests an attorney fee on appeal.

The husband, who was 46 years old at the time of trial, is employed by Norfolk Southern Railway. His base yearly salary is $74,658. In February 2007, the husband was a awarded a $10,000 bonus; he testified that his February 2008 bonus was only $5,000. He testified that he “took home” about $3,500 from the $5,000 bonus check. The husband has a retirement account through his employer; his retirement account contained $54,784.24 as of June 2007. He said that had taken out two loans against the account totaling $9,463.12.

The wife was 58 years old at the time of trial. She is not regularly employed and receives Social Security disability benefits in the amount of $600 per month. She did testify that she had previously sat with some elderly or ill people; she said that they had given her “gifts” of money. The wife said that she had purchased some significant items with the “gifts,” including a set of tires and a boat motor. However, the wife said that she had not been able to continue sitting with people during the pendency of the divorce action.

The wife has had at least 'three forms of cancer, including cervical, kidney, and thyroid. She has only one functioning kidney, and one quarter of it has been removed. The wife had surgery to remove a tumor from her back during the pendency of the divorce action. The wife also suffers from chronic obstructive pulmonary disease (“COPD”), diabetes, and depression. She is on at least four prescription medications, including Januvia, a diabetes medication; Lexapro, an antidepressant; Synthroid, a thyroid medication; and Advair, an inhaled medication often prescribed for asthma symptoms but likely prescribed for her COPD. The monthly cost of the wife’s medications and diabetic supplies is $744. The testimony at trial indicated that the husband’s employer did not offer the option of continued insurance for the wife under COBRA.

The husband testified that he had begun dating another woman, Laura Stinson, in November 2007, after the parties completed mediation. The husband said that he thought that he and the wife had reached an agreement on the divorce issues and that everything was “final” when he began dating Stinson. The wife, however, testified that she had suspected an affair much earlier based on the husband’s staying up late on the computer and his sneaking outside for late-night telephone calls. The wife also testified that the husband had admitted to her before he filed the divorce complaint that he was having an affair with Stinson. The wife said that she had tried to gather evidence to prove the longstanding nature of the husband’s relationship with Stinson, but she was unable to access the husband’s cellular-telephone records or the parties’ computer.

The parties had listed the marital residence for sale in October 2007. According to the wife, she had agreed to list the marital residence for sale for $174,900, which was the price the realtor had suggested and the value of the marital residence based upon an appraisal. The husband testified that they had received no offers at the original list price, so he had reduced the price to $169,900. The parties disagreed on the amount of the outstanding mortgage associated with the marital residence; the wife testified that it was $124,000, while the husband testified that it was $127,000 or $128,000.

The husband testified that the mortgage payment on the marital residence was $960 per month. He explained that the debt associated with the parties’ 2006 Ford Expedition was $33,000; he said that his monthly payment on that vehicle was $602. The parties had two Chase credit cards with a combined balance of $12,500. The husband also testified that he paid $200 per month to repay a loan from the credit union, which had a remaining balance of $3,500. Further, the husband testified that he had been paying all the debts of the parties and all the bills associated with the marital residence except for the cable bill and the residential telephone bill, both of which services he had had disconnected. The husband paid the parties’ cellular-telephone bill, which apparently was a family-type plan, and both parties’ cellular-telephone use was reflected on one bill.

The husband testified that the parties owned a 1981 Corvette that was worth $13,700. The husband testified that the Corvette was paid for, but then he testified that it might still have $3,000 in debt associated with it. The wife testified that the Corvette had been a gift to her from the husband and that it was worth $20,000. The parties also owned a restored 1985 Chris Craft boat, which the husband testified was worth $3,900; the wife testified that the boat was worth $20,000.

At trial, the husband testified that he wanted the trial court to order the house sold, as the parties had already planned, and to order that the proceeds be used to satisfy the mortgage and other marital debt before the remaining proceeds were divided equally. The wife, however, testified that she wanted to be awarded the marital residence, with its associated debt, and to have the husband pay her $2,600 per month in alimony. The husband testified that he understood that he would likely have to pay the wife some amount of alimony after the house was sold; he also agreed that he should be responsible for the mortgage on the residence and all debts until the residence was sold. The husband also testified that he was willing to give the wife half of the value of his retirement account as of May 2007.

The wife argues that the trial court erred by not divorcing the parties on the ground of adultery. Although the wife testified that she had suspected that the husband was having an affair before he filed for divorce and although the wife testified that the husband had admitted the affair to her, the husband testified that he had not begun his relationship with Stinson until after the parties had mediated their divorce in November 2007. No other evidence of adultery was presented at trial. The wife’s testimony of the husband’s alleged confession of adultery, alone, is not sufficient evidence upon which to base a divorce on the ground of adultery. Yates v. Yates, 676 So.2d 365, 366 (Ala.Civ.App.1996) (“The testimony of one spouse as to the other spouse’s confession of adultery is, alone, insufficient to warrant a divorce on the grounds of adultery, and that testimony is admissible only in corroboration of other evidence tending to establish the offense.”). Without evidence corroborating the wife’s testimony of the confession or evidence establishing more than a mere suspicion of adultery, the trial court could not have granted the divorce on the ground of adultery. Yates, 676 So.2d at 366. Thus, we find no error in the trial court’s decision to grant the divorce on the ground of incompatibility.

The wife’s next arguments concern the property division and alimony award. The trial court has wide discretion over alimony and the division of property, and it may use whatever means are reasonable and necessary to equitably divide the parties’ property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). The only limitation on that discretion is that the division of property be equitable under the circumstances of the particular case, and the task of determining what is equitable falls to the trial court. Ross v. Ross, 447 So.2d 812, 813 (Ala.Civ.App.1984). The trial court’s judgment is presumed correct and will not be reversed unless it is so unsupported by the evidence as to be unjust and palpably wrong. Grimsley, 545 So.2d at 76. “The trial court has no rigid standards on which to base the determination of alimony and division of property.” Jones v. Jones, 560 So.2d 1092, 1093 (Ala.Civ.App.1990). In making the division, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their ages and health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174, 1176 (Ala.Civ.App.1986). This court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995), and, because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993).

The wife argues that, in light of the husband’s alleged adultery, she should have been awarded the marital residence. As noted above, the husband did not admit committing adultery before the parties had separated, and the evidence was insufficient to support a finding of adultery. Yates, 676 So.2d at 366. Notably, the wife had requested in her answer that the marital residence be sold and the proceeds divided. In addition, the parties had already placed the marital residence on the market. The marital residence was the parties’ only significant asset, and its sale and the award of the remaining proceeds from its sale to the wife, after the satisfaction of the mortgage and the retirement of the credit-card debt, is equitable.

The wife also complains that the trial court abused its discretion in awarding her only $600 per month in alimony. She contends that she requires a larger award of alimony in order to meet her expenses. Once the marital residence is sold, the wife will need to secure a residence; she testified at trial that she would not be able to purchase a new residence with the approximately $30,000 she would receive once the marital residence was sold. Thus, the wife will likely incur rental expense of some amount for an apartment or house. The wife’s significant monthly medical expenses will exceed her $600 per month in disability income.

The husband’s net income per month is around $3,000. He must pay the remaining indebtedness on the 2006 Ford Expedition sport-utility vehicle; the payments on that vehicle are $602 per month. He must also pay $200 per month on the credit-union loan. Thus, after paying alimony, the loan payments, and the vehicle payments, the husband would have approximately $1,600 per month in income to pay for his living expenses. In light of the wife’s limited income, her health problems and the expenses associated with them, and the length of the parties’ marriage, we agree with the wife that the trial court abused its discretion by awarding her only $600 per month in alimony when the husband has the ability to pay more and she does not have the ability to meet her basic needs on her own disability income. See Kelly v. Kelly, 892 So.2d 426, 431 (Ala.Civ.App.2004) (reversing a property division and a $100 alimony award when the evidence established that the wife had far less earning potential than the husband and the trial court’s award had not left the wife with means to secure a home); Mayhann v. Mayhann, 820 So.2d 836, 839 (Ala.Civ.App.2001) (reversing a property division and alimony award of $350 because the awards were inequitable and left the wife nothing but an automobile, a bedroom suite, and cookware and china).

The wife’s final argument is that the trial court and this court should award her an attorney fee. Typically, the award of an attorney fee in a divorce case is a matter within the trial court’s discretion.

“Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994). ‘Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.’ Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993).”

Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996) (emphasis added).

The evidence at trial established that the wife had $600 per month in disability income compared to the husband’s $3,000 per month in net income from his employment. We are reversing the trial court’s alimony award because it is inequitable under the circumstances of this case. In light of the fact that the wife has meager resources with which to pay her attorney and in light of our reversal of the alimony award, we reverse the trial court’s judgment insofar as it failed to award the wife any amount for an attorney fee. See Murphree v. Murphree, 579 So.2d 634, 637 (Ala.Civ.App.1991) (reversing a trial court’s judgment insofar as it failed to award the wife an attorney fee in light of her “meager finances”). On remand, the trial court should consider awarding the wife a reasonable attorney fee.

The wife is awarded an attorney fee of $1,500 on appeal.

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

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

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


author: THOMPSON, Presiding Judge.

text:
    M.T.D. v. MORGAN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2090331.
    Court of Civil Appeals of Alabama.
    May 14, 2010.
    Rehearing Denied July 30, 2010.

      H. McGriff Belser III of Edwards, Bel-ser & Smith, Decatur, for appellant.
    Sharon E. Ficquette, asst. atty. gen. and gen. counsel, and Kimberly J. Dobbs, asst, atty. gen. and asst. gen. counsel, Department of Human Resources, for appellee.
   THOMPSON, Presiding Judge.

On February 20, 2009, the Morgan County Department of Human Resources (“DHR”) filed in the Morgan Juvenile Court (“the juvenile court”) a dependency complaint seeking custody of Ma.T.D. (“the child”), a minor child. In its dependency complaint, DHR alleged that the child’s father, M.T.D. (“the father”), had been arrested and extradited to Illinois to face criminal charges in that state. The complaint alleged that, upon his arrest, the father had delegated parental authority to J.D. (“the mother”), the child’s mother and M.T.D.’s ex-wife. DHR alleged that the mother was using illegal drugs while caring for the child and, therefore, that the child was dependent. It is undisputed that the child was taken into protective custody at the time DHR filed its dependency complaint; however, any initial juvenile-court orders are not contained in the record on appeal.

On June 4, 2009, the juvenile court entered an order finding the child to be dependent. The father appealed that order to this court. However, the juvenile court entered an order finding that the record was not adequate for an appeal to this court. See Rule 28(A)(1), Ala. R. Juv. P. (providing for appeals to this court if, among other things, the juvenile court certifies the record as adequate for such an appeal). Accordingly, this court entered an order on July 27, 2009, transferring the appeal to the Morgan Circuit Court (“the trial court”) for a trial de novo. We note that although he was represented by a court-appointed attorney, the father also filed a number of pro se motions and other materials in both the juvenile court and the trial court.

The trial court conducted an ore tenus hearing. The father did not attend that hearing because he remained incarcerated in Illinois, but he was represented by counsel at that hearing. On December 29, 2009, the trial court entered a judgment finding the child to be dependent and awarding custody of the child to DHR. The father timely appealed. The father is represented by new counsel on appeal.

The sole argument the father asserts on appeal is that the trial court violated his due-process rights by finding the child dependent when he was not present at the dependency hearing. The father argues that he had a right to be present at the dependency hearing. We disagree. An incarcerated person has no right to be transported from his or her place of confinement to participate in a civil action that is not related to his or her confinement. Clements v. Moncrief, 549 So.2d 479, 481 (Ala.1989). Rather “ ‘[h]is proper course is to take his own oral or written deposition under Rule 30 or 31, [Ala. R. Civ. P.], to be used at trial as specifically provided in Rule 32(a)(3)(C), [Ala. R. Civ. P.].’ ” Id. (quoting Hubbard v. Montgomery, 372 So.2d 315, 316 (Ala.1979)).

Consistent with the holding in Clements v. Moncrief, supra, in the context of a case involving a claim that a child is dependent or that parental rights should be terminated, this court has stated:

“It has been stated that due process of law requires that there be notice, a hearing conducted in accord with that notice, and a judgment consistent with that notice and hearing. Opinion of the Justices, 345 So.2d 1354 (Ala.1977). Where there is representation by counsel and an opportunity to present testimony through deposition, then due process does not require that an incarcerated parent be allowed to attend the termination hearing. Eastman v. Eastman, 429 So.2d 1058 (Ala.Civ.App.1983); 16D C.J.S. Constitutional Law § 1254 (1985).”

Pignolet v. State Dep’t of Pensions & Sec., 489 So.2d 588, 590-91 (Ala.Civ.App.1986). See also Thornton v. Thornton, 519 So.2d 960, 961 (Ala.Civ.App.1987); and Valero v. State Dep’t of Human Res., 511 So.2d 200, 202-03 (Ala.Civ.App.1987).

In Pignolet v. State Department of Pensions & Security, supra, the juvenile court entered a judgment terminating the parents’ parental rights to their two children. The incarcerated father argued on appeal that his fundamental rights were violated because he was not allowed to attend the termination heai'ing. This court rejected that argument, noting that the father had notice of the hearing, had a court-appointed attorney to represent him, and had the opportunity to present testimony by deposition. In affirming the juvenile court’s judgment, this court concluded that “[t]he father’s attorney could have presented testimony from the father in the form of a deposition.” Pignolet v. State Dep’t of Pensions & Sec., 489 So.2d at 591.

In Thornton v. Thornton, supra, the trial court, after conducting an ore tenus hearing, granted the father’s petition to terminate the mother’s parental rights to their surviving child. The mother appealed, arguing, among other things, that her due-process rights had been violated because she had not been able, due to her incarceration, to attend the termination hearing. This court, citing Pignolet v. State Department of Pensions & Security, supra, affirmed the termination judgment. In doing so, this court noted that the record demonstrated that the mother “was fully represented by counsel at the hearing and had every opportunity to present evidence on behalf of her case.” Thornton v. Thornton, 519 So.2d at 961.

Similarly, in this case, the father undisputedly had notice of the dependency hearing, was afforded a court-appointed attorney to represent him, and had the opportunity to present evidence in the form of a deposition. The father did not move to attend the dependency hearing. Further, the father did not file a motion in the trial court seeking to submit his testimony by way of deposition, nor did he actually submit evidence by way of deposition during the dependency hearing. We conclude that the father has failed to demonstrate that his due-process rights were denied or violated. Thornton v. Thornton, supra; Pignolet v. State Dep’t of Pensions & Sec., supra. Accordingly, we affirm.

AFFIRMED.

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

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


author: MOORE, Judge.

text:
    L.B. v. R.L.B.
    2090149.
    Court of Civil Appeals of Alabama.
    June 18, 2010.

      Virginia R. Lucci, Montgomery, for appellant.
    Stanley A. Moorhouse of Battaglia Law Office LLC, Montgomery, for appellee.
   MOORE, Judge.

L.B. (“the mother”) appeals from a judgment of the Montgomery Juvenile Court (“the juvenile court”) holding her in contempt of previous orders of the juvenile court and otherwise enforcing its previous judgment, which made awards of custody, visitation, and child support with regard to B.A.B. (“the child”) upon the filing of a dependency petition filed by R.L.B. (“the father”). Because we conclude that the juvenile court lacked subject-matter jurisdiction, we dismiss the mother’s appeal.

Facts and Procedural History

On January 18, 2007, the father, who lived in Louisiana, filed a petition in the juvenile court seeking custody of the child; the father’s petition was docketed as case no. JU-07-27.01. The father alleged that the child was dependent because, he said, “[cjustody, visitation, and child support need to be established” for the child. The father asserted that a paternity case had been initiated in Louisiana and that a child-support case had been initiated in Alabama. Specifically, he stated that he had signed an “Acknowledgment of Paternity” of the child in Louisiana in March 2006, that he had been allowed visitation with the child while the child had lived in Mobile, and that the mother had relocated to Montgomery with the child without notifying him of the move. The father requested that he be awarded physical custody of the child and child support and that the child’s last name be changed to the father’s last name.

On March 7, 2007, the mother filed an answer to the father’s petition and a counterclaim seeking sole legal and physical custody of the child and an award of child support. The mother alleged that the child was born on December 31, 2005, and that the mother and the father had never been married to each other. She stated that a petition for a determination of the child’s paternity and for child support was pending in the Montgomery Circuit Court and requested that that case be consolidated with the father’s action. The mother asserted that the father had admitted to the paternity of the child in the case pending in the Montgomery Circuit Court and that that court had entered an order making a finding of paternity. The mother asserted that she had provided care for the child and that the child had lived with her since the child was born. She further asserted that the father had failed to visit the child despite an order of a Louisiana District Court allowing the father to have visitation with the child. On July 13, 2007, the mother filed a petition for custody of the child, alleging that the child was dependent because the child’s custody was the subject of controversy; as evidence of the child’s dependency, however, the mother merely referred to her previously filed answer and counterclaim. The mother’s dependency petition was docketed as case no. JU-07-27.02.

In May 2008, after ruling on visitation issues and other issues, the juvenile court noted on its case-action-summary sheet that it was “tak[ing] original jurisdiction over custody determination. Order to follow.” On July 17, 2008, the juvenile court entered a purported final judgment in which it, among other things, awarded the parties joint legal custody of the child and awarded the mother primary physical custody. The juvenile court further ordered visitation as mutually agreed upon by the parties or in accordance with a minimum visitation schedule, awarded child support to the mother of $168 per month, and ordered that a new birth certificate be issued for the child listing the father thereon and changing the child’s surname to the father’s last name. On July 22, 2008, the juvenile court entered a purported amended judgment, which merely changed the date the father’s child-support payments were to begin.

On July 28, 2008, the mother filed a motion for a new trial, asserting a number of arguments with regard to the juvenile court’s judgment. The juvenile court purported to deny that motion on August 12, 2008; however, the mother’s motion had been denied by operation of law on August 11, 2008. See Rule 1(B), Ala. R. Juv. P. Neither party appealed from that judgment.

On July 14, 2009, the mother filed a petition in the juvenile court alleging that the child was dependent because he had been abandoned by the father. That petition was assigned case no. JU-07-27.03. In that petition, the mother alleged that the father did not see the child while the child was in Louisiana and that only the paternal grandmother had exercised visitation with the child. She requested that the juvenile court evaluate the visitation schedule and that the court address the health-insurance needs of the child. The father filed an answer to the mother’s petition, denying the allegations therein. He also filed a counterclaim in which he requested primary physical custody of the child. Finally, the father filed a petition for an order of contempt in which he asserted, among other things, that the mother was refusing to permit the father to visit the child.

The juvenile court entered a purported judgment in case no. JU-07-27.03 on October 21, 2009, finding the mother in willful contempt of the prior orders of the court, awarding the father visitation with the child from October 6, 2009, until October 30, 2009, and requiring the parties, following that visitation period, to resume abiding by the provisions of the prior visitation order. The mother filed her notice of appeal to this court on November 4, 2009.

Discussion

“Although neither party has raised the issue of jurisdiction, ‘[mjatters of jurisdiction are of such importance that a court may consider them ex mero motu.’ ” Nelson v. Nelson, 10 So.3d 603, 605 (Ala.Civ.App.2008) (quoting Trousdale v. Tubbs, 929 So.2d 1020, 1022 (Ala.Civ.App.2005)). We note first that both the mother and the father asserted that the child’s paternity had been established, either by a Louisiana court or by the Montgomery Circuit Court, and that a case was pending in the Montgomery Circuit Court for child support. The record is devoid, however, of any other reference to either of those cases, other than the mother’s request to consolidate the present case with the case allegedly pending before the Montgomery Circuit Court. Although we are concerned that the juvenile court did not have jurisdiction because either the Louisiana court or the Montgomery Circuit Court retained jurisdiction of custody matters in this case, we decline to further address that concern because we dismiss this appeal on the basis that the juvenile court lacked jurisdiction on other grounds.

Juvenile courts are purely creatures of statute that have extremely limited jurisdiction. See Ex parte K.L.P., 868 So.2d 454 (Ala.Civ.App.2003). At the time the father’s petition was filed, the operative statute, former § 12-15-30(a), Ala. Code 1975, provided that “[t]he juvenile court shall exercise exclusive original jurisdiction of proceedings in which a child is alleged to be ... dependent....” Former § 12 — 15—52(c)(1), Ala.Code 1975, required a petition alleging dependency to “set forth with specificity ... the facts constituting the dependency ... and that the child is in need of supervision, treatment, rehabilitation, care or the protection of the state.... ” In the present case, the father filed a petition alleging that the child was dependent; however, the only assertions made by the father purporting to evidence the child’s dependency were that “[cjusto-dy, visitation, and child support need[ed] to be established for the minor child.” The father made no assertions in his petition tending to show that the child was dependent according to the definition of a “dependent child” found in former § 12-15-1(10), Ala.Code 1975.

By failing to allege with specificity that the child was in need of supervision or to otherwise allege facts that, if proven, would establish the child’s dependency, the father, in turn, failed to properly invoke the jurisdiction of the juvenile court. The juvenile court proceeded, however, to hold status conferences on the motions made by the mother and the father and to enter various orders regarding visitation between the child and the father and to ultimately make a determination of custody, even asserting on the case-action-summary sheet at one point that the court “takes original jurisdiction over the custody determination.” We conclude that the juvenile court did not have the power to assume jurisdiction over the case or to make a custody determination.

Even assuming that the father’s dependency petition was sufficient to invoke the juvenile court’s jurisdiction, and we maintain that it was not, the juvenile court failed to address the allegation of dependency in any of its orders or judgments. There is no mention of dependency in the juvenile court’s final judgment entered on July 17, 2008, yet the juvenile court proceeded to make an adjudication of the child’s custody. In K.C.G. v. S.J.R., 46 So.3d 499, 501-02 (Ala.Civ.App.2010), this court stated:

“Once the dependency jurisdiction of a juvenile court has been properly invoked, the juvenile court has an imperative statutory duty to conduct an evidentiary hearing to determine the dependency of the child. Ex parte Linnell, 484 So.2d 455, 457 (Ala.Civ.App.1986) (‘[Pjursuant to § 12-15-65, [Ala.Code 1975, ] a hearing on the merits of the petition itself is required to determine if the children are, in fact, dependent....’); see also Ex parte W.H., 941 So.2d 290, 299 (Ala.Civ.App.2006). If a juvenile court determines that the child is not dependent, the court must dismiss the dependency petition. Ala.Code 1975, former § 12-15-65(d). On the other hand, if, and only if, a juvenile court finds that the child is dependent, the court may then conduct proceedings to determine the custodial disposition of the child. Ala.Code 1975, former § 12-15-65. Ex parte K.S.G., 645 So.2d 297 (Ala.Civ.App.1992) (holding that juvenile court never assumed jurisdiction to determine issue of custody of child when evidence revealed that there was no emergency situation rendering the child dependent as alleged in mother’s petition); Ex parte J.R.W., 630 So.2d 447 (Ala.Civ.App.1992) (holding that juvenile court that had never declared child dependent had no jurisdiction to enter order affecting visitation rights of father); J.W. v. W.D.J., 743 So.2d 467, 469 (Ala.Civ.App.1999) (holding that once juvenile court found children dependent, it had exclusive jurisdiction to determine their custody); Ex parte W.H., supra (holding that juvenile court erred in transferring custody of allegedly dependent child without holding evidentiary hearing to ascertain dependency of child); C.D.S. v. K.S.S., [963 So.2d 125 (Ala.Civ.App.2007) ] (holding that juvenile court that determined child was not dependent had no jurisdiction to thereafter determine custody of child); and E.H. v. N.L., 992 So.2d 740 (Ala.Civ.App.2008) (holding that, when evidence did not prove dependency of child as alleged in complaint, but revealed pure custody dispute, juvenile court was without jurisdiction to determine custody of child). As this court recently stated: “‘[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.” V.W. v. G.W., 990 So.2d 414, 417 (Ala.Civ.App.2008) (quoting K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 379, 389 (Ala.Civ.App.2004) (Murdock, J., concurring in the result)).

In K.C.G., the juvenile court had announced that it did not intend to treat the case as a dependency action but that it intended to determine only the custody of the child; the juvenile court then entered a judgment in which it did not declare the child dependent, but merely awarded custody of the child to the child’s paternal grandmother based on the mother’s unfitness. 46 So.3d at 502. This court determined that “once the juvenile court recognized that the case did not involve a question of dependency, it lost jurisdiction over the remaining subject matter, i.e., the dispute over the custody of the child,” and we dismissed the appeal because it was taken from a void judgment. 46 So.3d at 504.

In the present case, the juvenile court likewise asserted its jurisdiction over the child’s custody. The record is devoid of any evidence tending to establish that the child was dependent, and the juvenile court failed to make any findings regarding the child’s dependency throughout the litigation. Moreover, as discussed above, we conclude that the father initially failed to properly allege dependency. Because both the mother and the father conceded that the father’s paternity of the child had been decided, whether by the court in Louisiana or by the Montgomery Circuit Court, the issue of the child’s custody was not “otherwise before the court” pursuant to former § 12-15-30(b)(l), Ala.Code 1975. As a result, the jurisdiction of the juvenile court was never invoked in case no. JU-07-27.01, and the juvenile court lacked the power to adjudicate the issues of custody, child support, and visitation. See M.S. v. D.A.P., 1 So.3d 73, 74 (Ala.Civ.App.2008) (Bryan, J., dissenting). Therefore, all judgments and orders entered by the juvenile court in case no. JU-07-27.01 are void.

Because the judgment entered in JU-07-27.01 is void, the juvenile court lacked jurisdiction to modify or enforce that judgment. Cf. McCarthy v. McCarthy, 785 So.2d 1138 (Ala.Civ.App.2000) (holding that circuit court that had no jurisdiction to modify Georgia custody determination could not enter valid contempt judgment against husband for violating void modification judgment)^ In its October 21, 2009, judgment, the juvenile court purported to find the mother in contempt of certain provisions of the July 2008 judgment, to temporarily alter the visitation provisions of that judgment, and to order the parties thereafter to follow the visitation provisions contained in that judgment. However, all of those findings and orders are themselves void for lack of subject-matter jurisdiction. As such, the judgment will not support an appeal. J.D.R. v. M.M.E., 898 So.2d 788, 786 (Ala.Civ.App.2004). Accordingly, we dismiss the mother’s appeal and direct the juvenile court to set aside its July 17, 2008, judgment, and its amended judgment dated July 22, 2008, establishing custody, visitation, and child support, as well as its October 21, 2009, order finding the mother in contempt.

APPEAL DISMISSED WITH INSTRUCTIONS TO THE JUVENILE COURT.

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

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

      "3 Effective January 1, 2009, Ala.Code 1975, § 12-15-65, was amended and renumbered as Ala.Code 1975, § 12-15-129. See Act No. 2008-277, § 7, Ala. Acts 2008.”

      . Although the juvenile court's final judgment entered on July 17, 2008, did not refer to case no. JU-07-27.02, we note that the mother’s alleged dependency petition in that case likewise did not invoke the juvenile court’s jurisdiction and that each of the judgments and orders entered under that case number were also entered by the juvenile court without subject-matter jurisdiction.

      . We note that the mother invoked the dependency jurisdiction of the juvenile court when she filed her 2009 petition, which was assigned case no. JU-07-27.03. That petition alleged that the child had become dependent due to the abandonment of the child by the father. However, the juvenile court impliedly found that the father had not abandoned the child, thereby denying the dependency petition. At that point, the juvenile court was without jurisdiction to perform any judicial act other than dismissing the petition. See § 12-15-310(b), Ala.Code 1975 ("If the juvenile court finds that the allegations in the petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition.”). However, the juvenile court purported to treat the mother’s petition as a petition for modification of the July 2008 judgment, which it could not do.

      . Because we have determined that the juvenile court lacked jurisdiction in this case, the mother's argument, citing T.L.H. v. R.A.R., 977 So.2d 482 (Ala.Civ.App.2007), that the juvenile court lacked jurisdiction to order a change of the child's last name to that of the father is moot.