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    M.H. v. H.N.M.
    2091203.
    Court of Civil Appeals of Alabama.
    Feb. 11, 2011.
    Rehearing Denied April 8, 2011.

      Charles A. Langley of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appellant.
    Charles R. Stephens, Jr., of Stephens, Stephens <& Williams, L.L.C., Jasper, for appellee.
   BRYAN, Judge.

M.H. (“the father”) appeals from a judgment entered by the Walker Juvenile Court (“the juvenile court”) that awarded custody of his daughter, M.J.H. (“the child”), to H.N.M., the child’s maternal aunt (“the maternal aunt”). In M.H. v. H.N.M., 46 So.3d 967 (Ala.Civ.App.2009), this court dismissed the father’s initial appeal in this matter after we concluded that the judgment was nonfinal because the juvenile court had failed to rule on the father’s request for visitation with the child. After this court dismissed the father’s appeal, the juvenile court entered an order that was identical to the initial order awarding custody of the child to the maternal aunt except that it also awarded the father visitation with the child every other weekend of each month and at any additional times to which the parties agreed.

A summary of the procedural history of this case can be found in M.H. v. H.N.M., supra; therefore, we will not discuss it in detail here. However, we will briefly address the juvenile court’s jurisdiction to determine the custody of the child. This proceeding was initiated by the maternal aunt in December 2007 when she filed a petition for custody of the child because the whereabouts of E.D., the mother of the child (“the mother”), were unknown. The record indicates that the maternal aunt’s December 2007 petition for custody was the second proceeding presented to the juvenile court regarding the child’s custody. In May 2005, an emergency petition for custody was filed by the father’s cousin, and the father’s cousin was apparently awarded pendente lite custody of the child at that time. However, after a trial, the juvenile court awarded custody of the child to the mother in August 2006. Because the record indicates that the juvenile court had previously decided the issue of custody of the child, former § 12-15-82, Ala.Code 1975, which was applicable at the time the maternal aunt filed her petition for custody of the child, applies. Former § 12-15-32(a) provided, in pertinent part: “[Jjuris-diction obtained by the juvenile court in any case of a child shall be retained by it until the child becomes 21 years of age unless terminated prior thereto by order of the judge of the juvenile court....” Accordingly, because there is no indication in the record that the juvenile court entered an order terminating its jurisdiction over the child, we conclude that the juvenile court properly exercised its continuing jurisdiction over the child in ruling on the maternal aunt’s petition for custody of the child.

On appeal, the father argues that the juvenile court exceeded its discretion when it awarded the maternal aunt custody of the child. In doing so, he argues that the findings of fact in the juvenile court’s judgment were unsupported by the evidence, that the maternal aunt failed to meet her burden of proving that he was unfit, and that the juvenile court erred by considering his physical appearance in making its custody determination. The father also argues that the juvenile court exceeded its discretion by failing to award him liberal visitation with the child.

The testimony presented at the June 2008 ore tenus hearing revealed the following. The mother and the father never married, but they were living together when the child was born in December 2004. D.G., the child’s paternal grandmother (“the paternal grandmother”), testified that the mother, the father, and the child moved into her home after the child was born. However, the father testified that he, the mother, and the child lived together until his relationship with the mother ended, approximately five weeks after the child was born, and that, at that time, the mother and the child moved in with his mother, the paternal grandmother. According to the father, the mother moved to Jasper shortly thereafter and left the child with his cousin. The paternal grandmother testified that the mother left the child with the father’s cousin around April or May of 2005.

In May 2005, the father’s cousin filed a petition for custody of the child, referenced above, and the testimony of the parties confirmed that the father’s cousin was awarded pendente lite custody of the child. However, the paternal grandmother testified that the father’s cousin (her niece) had actually given her custody of the child during that time. The maternal aunt’s testimony indicated that the mother immediately tried to regain custody of the child and that the juvenile court returned custody of the child to the mother in August 2006. The maternal aunt testified that the paternal grandmother had allowed the mother to visit the child only on two occasions during the time that the paternal grandmother had custody of the child.

The father testified that he had assisted his cousin in obtaining custody of the child in May 2005 and that, at that time, he had agreed to terminate his parental rights to the child. However, he also stated that he had never signed anything to terminate his parental rights. Although it was confirmed that the father was a respondent listed on his cousin’s 2005 petition for custody of the child, the father stated that he was not involved in the custody action.

According to the father, he saw the child every day when his cousin had custody of the child and he tended to “100% or more” of the child’s needs during that time, including the child’s material needs, such as diapers, and the child’s physical needs, such as feeding and bathing the child. However, the father also testified that he had been working in Huntsville during that custody proceeding and that he was home only on the weekends. It was unclear where the father lived when he came back from Huntsville on the weekends. Further, according to the maternal aunt, the father was not involved with the child after May 2005 because his cousin had a restraining order entered against him.

The paternal grandmother testified that she had cared for the child during the first 20 months of the child’s life, even after the father’s cousin, her niece, was awarded custody of the child. The paternal grandmother admitted that she had attempted to intervene in the 2005 custody action in order to obtain custody of the child, and she admitted that she had tried to stop the return of the child to the mother in August 2006 by filing motions after the close of that custody trial.

After the mother obtained custody of the child in August 2006, she did not allow the father to visit the child. The father stated that the mother had a restraining order entered against him but that he would occasionally go to the mother’s place of employment to talk to her. The father stated that, before the mother disappeared, he had not seen the child in 16 months. The maternal aunt testified that the child did not recognize the father when he came to the maternal aunt’s home in November 2007, shortly after the mother disappeared, and that the child did not ask about the father.

At the time of the mother’s disappearance in November 2007, the father was living and working in Gulf Shores. When the father learned of the mother’s disappearance, he returned to Walker County and asked the maternal aunt for custody of the child. However, the maternal aunt expressed her desire to keep custody of the child until the mother was found, in light of the previous custody battle between the mother and the father’s family. The father agreed to allow the child to remain with the maternal aunt, and he apparently returned to Gulf Shores. The mother was discovered to be deceased on or about December 11, 2007.

At the time of her death, the mother had three children with three different fathers: El.D., who was four years old at the time of the final hearing; the child, who was three years old at the time of the final hearing; and J.D., who was two years old at the time of final hearing. After the mother disappeared in November 2007, the maternal aunt took custody of the mother’s three children, with the permission of the fathers of the mother’s children. The maternal aunt stated that she was very close to the mother and that she had spent a significant amount of time with the child before the mother’s death.

The maternal aunt, who was 29 years old at the time of the hearing, testified that she lived in a three-bedroom, two-and-one-half-bathroom home. She had custody of her son, who was five years old at the time of the final hearing, as well as the mother’s three children. Her brother, who was 22 years old, lived in the basement of her home. The maternal aunt worked Sunday through Thursday from 10:30 p.m. until 8:30 a.m., and she hired a babysitter to care for the mother’s children and her child while she was at work. The maternal aunt’s child and the mother’s oldest child attended school, and the mother’s two younger children, including the child, remained at home with the maternal aunt on weekdays. The record indicated that the babysitter, friends of the maternal aunt, the maternal aunt’s brother, and the aunt and uncle of the maternal aunt helped the maternal aunt care for the children during the day while the maternal aunt slept.

The maternal aunt admitted that the father of her child, T.N., was imprisoned on drug charges at the time of the hearing. She stated that she was aware of a prior drug charge against T.N., and that T.N. had frequently come to her home before he was imprisoned so that he could visit their child. Before his incarceration, T.N. took their child and the mother’s oldest child to school before the maternal aunt returned from work. The maternal aunt also admitted that her brother had been arrested for possession of marijuana approximately one year before the hearing, but she testified that she had warned him that if he ever brought drugs into her home she would not allow him to live with her. She stated that she was trying to help her brother because he did not have anyone else to help him.

On cross-examination, the maternal aunt testified that her petition for custody of the child was based on her desire to keep the mother’s three children in the same household. She stated that she did not believe that the father was unfit, but she also stated that the child did not know the father because the father had not spent time with the child. The maternal aunt testified that the father had not provided any financial support for the child to the mother after their relationship ended and that the father had not provided any support for the child after she was awarded pendente lite custody of the child in December 2007.

The record indicated that the father had been living in Florida at some time and that he had moved to Gulf Shores approximately 18 months before the hearing. According to the father, he had moved back into his mother’s home in Fayette County approximately two weeks before the hearing. He stated that his mother and stepfather were willing to help him care for the child if he was awarded custody of the child but that he was able to care for the child himself. The paternal grandmother testified that the father stayed at her home only on weekends and that during the week he stayed with a coworker in another town so that he could ride with him to work. When questioned further about his living arrangements, the father stated that, if he were awarded custody of the child, he would live “full-time” with his mother and stepfather.

The father testified that his driver’s license was suspended, and he indicated that he relied on his mother and his coworkers for transportation. The father worked as a mason, and he stated that he had been employed “off and on” by the same company for 18 months. At the time of the hearing, he earned $10 an hour, but he stated the he could earn more income once he retrieved his trade tools from Gulf Shores. The father stated that he could obtain health insurance through his employer, although he did not have insurance at the time of the final hearing.

The father has another child living in Florida who was six years old at the time of the final hearing. The father did not pay child support for that child “through the courts,” but he stated that he sent the child money when it was needed. The father stated that he had not seen his other child in a few years and that it was difficult to visit her because she lived in central Florida. The father admitted that he had had two domestic-violence-related charges filed against him: one by the mother, although those charges were dropped, and one by the mother of his child who lived in Florida. The father testified that he had pleaded guilty to the domestic-violence-related charge in Florida, which he described as a “touch or strike battery,” although he later testified that he had pleaded nolo contendré to that charge. However, the father admitted that he was guilty of the offense and that he had shaken the victim and pushed her in order to get away from her.

When asked if he had ever used any illegal drugs, the father responded that he had used marijuana “earlier in [his] childhood ... or my teenage years.” The father stated that he was not sure of the last time he had used marijuana, but he admitted that he could not pass a drug screen at the time of the hearing because he had used marijuana in the 30 days before the hearing. According to the paternal grandmother, the father possessed all the skills necessary to care for the child. She admitted that she was aware of the father’s use of marijuana, but she opined that marijuana was “better than being around cocaine” and that the child was “not in danger with marijuana as she would be with cocaine.” When asked if she knew that the father used marijuana “pretty regularly,” the paternal grandmother responded that she “tr[ied] not to know that.” She further testified: “I know he smokes [marijuana]. I don’t know if it is just socially or what.”

The father’s attorney objected to a question presented to the father by the maternal aunt’s attorney regarding the number of tattoos the father had on his body. The juvenile court overruled the objection, and the father stated that he had approximately 70 tattoos. The maternal aunt’s counsel questioned the father regarding the meaning of several of his tattoos, including one on the father’s head that the father identified as the symbol for anarchy. The father stated that he had had a problem with authority when he was younger but that he no longer had that problem. The father testified that he once worked at a tattoo parlor and that he did not pay for any of his tattoos but that his tattoos were worth “a couple of grand.”

The child’s guardian ad litem stated on the record that she had reservations about the maternal aunt and the father. The guardian ad litem questioned the father’s stability, but she did not believe that the maternal aunt was able to prove that the father was unfit to have custody of the child.

Based on this evidence, the juvenile court entered a judgment that set forth specific findings of fact. Some of those findings were as follows:

“5. That there exists a history of conflict between the families concerning the custody of the ... child....
“6. In case number JU-05-276.01 ... the father’s cousin, obtained custody of the minor child.
“7. That during the pendency of case number JU-05-276.01, the ... [fjather’s family refused to allow the ... [mjother, ... or her family visitation with the minor child.
“8. At the conclusion of the litigation in said case, the [juvenile cjourt stated that [the father’s cousin] failed to meet the burden of proof necessary to retain custody. During that trial it was discovered that the ... child was actually living with the paternal grandmother. This information was concealed from the [juvenile cjourt and was only revealed through cross-examination by [the mother j’s attorney.
“9. That upon learning that the [juvenile cjourt ruled in favor of the ... [mjother, the ... [fjather’s family filed several motions to prevent the return of the ... child to the ... [mjother.
“10. That during the testimony of the [father] in the instant case, it was discovered that the [father] was dishonest and not forthcoming with the truth.
“11. That the [father] misled the [juvenile cjourt in regards to his domicile. The [father] testified that he lived with his mother[, the paternal grandmother,] and that she could assist him in the rearing of [the child].
“12. That when questioned on cross-examination, the [father] admitted that he actually lived in Jasper with a friend and only went to his mother’s residence on the weekends.
“18. That the [father] further misled the [juvenile cjourt in his testimony regarding his employment. The [father] testified that he was gainfully employed with a long history with this employer.
“14. The [father] testified that he had returned to Alabama from the State of Florida ‘some time ago’ and had been working during that time.
“15. That when questioned further on cross-examination, the [father] admitted that he had only been back in Alabama for a period of two weeks and that he had only recently began working. The [father] also admitted that his tools of his trade remained in Florida.
“16. Therefore, the [father] has no permanent residence and an unreliable work history and questionable present employment.
“19. That when questioned the [father] testified that he had used mari[j]uana in the past, but not for some time. This statement was, as was a large portion of his testimony, untrue. Upon further questioning and the possibility of a drug test, the [father] testified that he could not pass a drug test and that he would test positive for marihuana.
“20. That upon further questioning concerning illegal drug use, the [father] testified that he smoked mari|j]uana daily-
'll. The [father] has failed to establish even the most basic relationship with [the child]. The [father] testified that he has failed to provide any monetary support for his daughter during her life.
“22. The [father] has failed to maintain any type of relationship with [the child]. There has been no contact between him and the ... child. The [father] testified that he has lived in the State of Florida for a period of years with another woman and her children. The [father] was convicted of a ‘Touch or Strike’ offense in Florida and was required to complete anger management classes as a result of said conviction. The [father] was charged with a similar charge in Alabama whereby he was charged with Domestic Violence. The victim was ... the ... mother but she dropped the charges.
“25. The [father] is not interested in the custody of this child. The [father] wishes to avoid any obligation of child support and is only participating in this case for the paternal grandmother. The [father’s extended family is playing a large role in the pursuit of custody.”

Based on its findings of fact, the juvenile court held that the father was “unfit and that he had voluntarily forfeited his place as the fit and proper person to have custody” of the child based on

“[ (1) ] his lack of establishing any hint of a relationship with the ... child[; (2) ] his refusal to financially support [the] ... child[; (3) ] ... his misconduct stemming from his being charged and convicted of domestic violence[; (4) his] prolific illegal drug use[;] and [ (5) ] his placing his own interests and desires above that of [the child].”

On appeal, the father argues that some of the juvenile court’s specific findings of fact were unsupported by evidence in the record and that the juvenile court erred by relying on those erroneous findings to support its judgment finding him unfit. In reviewing the propriety of a judgment that awards custody of a child to a nonparent over a natural parent, we must consider that

“Alabama law requires that a nonparent may overcome a natural parent’s prima facie right to custody of his or her child only by adducing clear and convincing evidence that the parent has either voluntarily forfeited the right to custody or has neglected the child to a degree that renders the parent unfit to be entrusted with the child’s care.”

J.W. v. D.W., 835 So.2d 206, 210 (Ala.Civ. App.2002) (citing Ex parte Terry, 494 So.2d 628, 632 (Ala.1986)).

Our standard of review is well settled:

“ ‘ “[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.” Philpot v. State, 843 So.2d 122, 125 (Ala.2002). “ ‘The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.’ ” Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)).
“Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005). ‘Under the ore tenus standard, the judgment of the trial court may not be disturbed unless its findings are “ ‘clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ ” ’ Fowler v. Johnson, 961 So.2d 122, 129 (Ala.2006) (quoting Pollard v. Unus Props., LLC, 902 So.2d 18, 23 (Ala.2004), quoting in turn American Petroleum, Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997)).”

Water Works & Sanitary Sewer Bd. of City of Montgomery v. Parks, 977 So.2d 440, 443-44 (Ala.2007). Furthermore, “[i]t is the province of the trial courts to estimate the credibility of witnesses, and if a trial court concludes that a witness was willfully untruthful, that court may disregard any or all of that witness’s testimony.” Summers v. Summers, 58 So.3d 184, 188 (Ala.Civ.App.2010).

Considering the specific findings of fact in the judgment, it appears that the juvenile court believed that the father was willfully untruthful about at least one issue—his usage of marijuana. Accordingly, the juvenile court was justified in disregarding any part or all of the father’s testimony. With that premise in mind, we will determine whether the juvenile court’s findings of fact, and its judgment declaring the father to be unfit, are so unsupported by the evidence that reversal of the judgment is required.

First, we will address the juvenile court’s finding that the father failed to “establish!] any hint of a relationship” with the child. The father argues that he presented evidence indicating that he saw the child every day for the first 20 months of the. child’s life, that he cared for the child while she was in the custody of his cousin, and that the mother refused to allow the father to see the child after she gained custody of the child in August 2006. We agree that the evidence indicated that the father had established a relationship with the child after her birth in December 2004, but the evidence regarding the father’s role in caring for the child after his cousin was awarded custody was disputed. Although the father stated that he saw the child every day, he also testified that he was working out of town during that time, and the maternal aunt testified that the father’s cousin had a restraining order entered against him. Regardless, there was clear and convincing evidence indicating that the father had not maintained whatever relationship he had established with the child. Between August 2006 and December 2007, the father had not seen or otherwise contacted the child. The evidence indicated that the mother had not allowed the father to visit the child after August 2006, but the father had not taken any legal action that would have enabled him to maintain a relationship with the child. Although the juvenile court’s finding of fact would have been more accurate if it had stated that the father had failed to “maintain” a relationship with the child (as the juvenile court stated in paragraph 22 of the judgment), we conclude that the juvenile court’s finding that the father failed to establish a relationship with the child is substantially in conformance with the evidence presented at the ore tenus hearing.

Next, the father argues that the evidence did not support the juvenile court’s conclusion that he refused to financially support the child. The father again points to evidence indicating that he tended to all the child’s needs while his cousin had custody of the child. Even if the juvenile court believed the father’s testimony in this regard, it was undisputed that the father had not provided any support for the child to the mother after August 2006 and that he had not provided any support for the child to the maternal aunt after she gained pendente lite custody of the child. There was no indication that the father was financially unable to support the child. Accordingly, we conclude that there was clear and convincing evidence to support the juvenile court’s conclusion that the father had failed to financially support the child.

The father next argues that there was insufficient evidence to support a finding that he was charged and convicted of domestic violence. We agree with the father that there was no evidence to support the juvenile court’s finding in paragraph 22 of the judgment that the father was required to attend anger-management classes as a result of his “touch or strike” conviction in Florida. The father argues that because he pleaded nolo contendré to the touch or strike charge in Florida, we cannot consider that conviction to prove the fact that he committed the offense underlying the conviction, citing McNair v. State, 653 So.2d 320, 327 (Ala.Crim.App.1992). Although that premise may be true, it does not require us to conclude that the juvenile court erroneously determined that the father had been charged and convicted of domestic violence. First, it was undisputed that the father had been charged with a touch or strike battery involving the mother of his older child. The father initially testified that he had pleaded guilty to the touch or strike charge in Florida and that he was guilty of the touch or strike charge filed against him by the mother of his other child because he had pushed the victim. Therefore, based on the father’s testimony, the juvenile court could have concluded that the father had been charged and convicted of a domestic-violence offense.

Finally, the father argues that the evidence did not support the juvenile court’s finding that he was a prolific drug user. The father argues that there was no evidence presented to support the juvenile court’s conclusion in paragraph 20 of the judgment that the father smoked marijuana daily. Although the juvenile court, in order to decide the issue of custody, was “‘in the better position to evaluate the credibility of the witnesses ... and ... to consider all of the evidence, as well as the many inferences that may be drawn from that evidence,’ ” Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997) (quoting Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994)), inferences drawn from the evidence must be reasonable. We agree with the father that the evidence presented does not support a finding that the father smoked marijuana daily or that he was a “prolific” drug user. However, there was clear and convincing evidence indicating that the father had smoked marijuana within 30 days of the hearing, and the juvenile court could have drawn a reasonable inference from the paternal grandmother’s testimony that the father used marijuana.

The specific findings of fact in the judgment indicate that the juvenile court believed that the father had been willfully untruthful regarding his domicile, but the father argues on appeal that he answered the questions presented to him about where he lived truthfully. The father testified that he lived with the paternal grandmother and her husband, but it was later revealed that the father “lived” at the paternal grandmother’s home only on the weekends. Even if the father considered the paternal grandmother’s home to be his “home,” we agree that it was misleading for the father to testify that he lived with the paternal grandmother at the time of the hearing when, in actuality, he spent only two of seven days of the week at the paternal grandmother’s home.

There was also some confusion about how long the father had been living and working in the Walker County area. When the father testified that he had been back in Alabama for 18 months, and that he had been working for the same employer “off and on” for 18 months, the juvenile court understood the father to testify that he had been living and working in the Walker County area for approximately 18 months before the hearing. However, it later became clear that the father moved to Gulf Shores when he moved back to Alabama and that he had been living and working in the Walker County area for only two weeks before the hearing. The father’s testimony on this subject was confusing, if not misleading.

The father also takes issue with the findings of fact found in paragraphs six through nine of the judgment, which discussed the prior custody proceeding filed by the father’s cousin. Most of the information regarding that proceeding was taken from the paternal grandmother’s testimony. However, to the extent that any part of the findings of fact in those paragraphs is unsupported by the evidence presented at the ore tenus hearing, the error was harmless because it had no bearing on the father’s fitness to care for the child at the time of the hearing.

We have thoroughly reviewed the record on appeal and the specific findings of fact made by the juvenile court in its judgment, and we cannot conclude that the judgment, as a whole, is so unsupported by the evidence that it must be reversed. Despite the existence of some errors in the findings of fact, our review of the record reveals that there was clear and convincing evidence to support the juvenile court’s conclusion that the father was unfit to be entrusted with the care and upbringing of the child at the time of the hearing. The record indicated that, at the time the maternal aunt petitioned for custody of the child, the father had not seen the child in at least 16 months and that the father had not maintained a relationship with the child during his absence from her life. See Ex parte A.M.B., 4 So.3d 472, 478 (Ala.2008) (noting the mother’s failure to visit the child as a factor to support a determination of her unfitness). Furthermore, at the time of the final hearing, the evidence indicated that the father had not provided financial support for the child in almost two years, that the father could not pass a drug screen, and that the father would have to rely on the paternal grandmother in order to properly care for the child. Indeed, the record also indicated that the father had never been solely responsible for the care of the child. See Ex parte G.C., 924 So.2d 651, 660 (Ala.2005) (in determining whether a parent is fit for custody of a child, a court must consider “whether the parent is fit to have the care, custody, and control of, that is, the total responsibility for, the child”); but see Ex parte 4 So.Bd at 478 (stating that, “in the abstract, a parent’s reliance on others, particularly family, for support is not, in and of itself, determinative of the parent’s unfitness”).

In A.M.B. v. R.B.B., 4 So.3d 468, 471 (Ala.Civ.App.2007), this court, affirming a judgment that found a mother to be unfit, stated:

“Unfitness that warrants a custody award to a nonparent is not defined solely as active neglect or abuse. Rather, a determination of unfitness is generally based upon the totality of the evidence and is often evidenced by an unwillingness on the part of a parent to put the child’s best interests ahead of the parent’s own desires.”

As noted above, the juvenile court found that the father had placed his own interests and desires above the child’s, and the father did not challenge that finding. Considering the totality of the evidence in the record, we find clear and convincing evidence to support the juvenile court’s judgment finding the father unfit to be entrusted with the care of the child. Accordingly, we affirm that aspect of the judgment.

Next, the father argues that the juvenile court’s consideration of his physical appearance merits reversal of the custody determination in favor of the maternal aunt. The father cites the juvenile court’s interest in the number of and the meaning of his tattoos during the hearing and a portion of the judgment, wherein the juvenile court stated:

“[T]he [juvenile cjourt only has the opportunity to have a glimpse into one’s person during a trial and must make a judgment regarding that person’s fitness for custody. The [juvenile c]ourt feels that you have to look at the person as a whole in making this determination. The [juvenile c]ourt takes into consideration a party’s physical appearance as one piece of this puzzle.”

The judgment further stated that the appearance of the father spoke “volumes” to the juvenile court, and the judgment described the physical appearance of the father on the day of the hearing, including his clothing, his tattoos, and his body piercing. In support of his argument that the juvenile court’s consideration of his physical appearance merits reversal of the custody determination, the father cites Jennings v. Jennings, 490 So.2d 10, 13 (Ala.Civ.App.1986), wherein this court acknowledged that “private biases and social pressures are impermissible consideration for removal of a child from the custody of a parent.” In Jennings, this court affirmed an award of custody of a child to a husband pursuant to a divorce proceeding. Id. In that case, the trial court had been aware that the wife had begun dating a man of a different race, but, in awarding custody of the child to the husband, the trial court had stated that “ ‘[n]either racial prejudices nor social considerations have been proved nor has any such consideration had any bearing on this decree.’ ” Id. (quoting trial court’s judgment).

During the hearing, when the maternal aunt’s counsel asked the father about his tattoos, the juvenile-court judge stated, in response the father’s counsel’s objection:

“Well, you know, the Court only gets a limited snapshot of people in their lives. I’ve noticed also that [the father] has numerous tattoos, and if [the maternal aunt’s counsel] hadn’t asked him how many he had, I was going to. And I was also going to ask him what some of them meant because, quite frankly, what we advertise on our bodies are something that we generally care very strongly about. So, I think it’s kind of an eye in to their personalities so I’d like to find out a little bit about him.”

We agree that, generally speaking, a party’s physical appearance, including the type of clothing the party is wearing and the existence of tattoos and body piercing, is irrelevant to the determination of custody of a child. However, we cannot disagree that messages displayed by a party on his or her person may reveal pertinent evidence about the character of a party seeking custody. See Ex parte Devine, 398 So.2d 686, 696 (Ala.1981) (listing the character of the party seeking custody as a pertinent factor in determining what custodial arrangement would serve the best interests of the child).

After a careful review of the entire record on appeal, we do not believe that the juvenile court’s consideration of the father’s physical appearance as “one piece of the puzzle” to determine the father’s fitness mandates a reversal of the juvenile court’s custody determination. It is clear from the record that the juvenile court did not base its determination of the father’s fitness solely on his physical appearance, and, as discussed above, the record contains clear and convincing evidence of the father’s unfitness without consideration of his physical appearance. Thus, to the extent that it was error to consider the father’s physical appearance, the error was harmless because there was other evidence to support the juvenile court’s conclusion that the father was unfit to have custody of the child at the time of the hearing.

The father has not argued on appeal that the award of custody to the maternal aunt does not serve the best interests of the child. See T.T.T. v. R.H., 999 So.2d 544, 557 (AJa.Civ.App.2008) (noting that, after a nonparent has overcome a natural parent’s prima facie right to custody of his or her child, the juvenile court must make a custody determination based on the best interests of the child). Accordingly, the juvenile court’s judgment awarding the maternal aunt custody of the child is due to be affirmed.

Finally, the father argues that the juvenile court exceeded its discretion by failing to award him “liberal” visitation with the child.

“ ‘The determination of proper visitation ... is within the sound discretion of the trial court, and that court’s determination should not be reversed absent a showing of an abuse of discretion.’ Ex parte Bland, 796 So.2d 340 (Ala.2000). ‘[C]ases in Alabama have consistently held that the primary consideration in setting visitation rights is the best interests and welfare of the child. Furthermore, each child visitation case must be decided on its own facts and circumstances.’ Fanning v. Fanning, 504 So.2d 737, 739 (Ala.Civ.App.1987) (citations omitted). ‘When the issue of visitation is determined after oral proceedings, the trial court’s determination of the issue will not be disturbed absent an abuse of discretion or a showing that it is plainly in error. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App.1987).’ Dominick v. Dominick, 622 So.2d 402, 403 (Ala.Civ.App.1993).”

K.L.U. v. M.C., 809 So.2d 837, 840-41 (Ala.Civ.App.2001).

The father argues that the juvenile court’s failure to award him liberal visitation with the child effectively terminated his parental rights to the child. We disagree. This court, in K.C. v. Jefferson County Department of Human Resources, 54 So.3d 407, 413 (Ala.Civ.App.2010), rejected an argument made by a natural parent that “a judgment placing a child ■with a relative custodian and providing for visitation with a natural parent is equivalent to a judgment terminating that parent’s parental rights.” As we noted in K.C., the natural parent, in this case the father, retains “residual rights and responsibilities in and to the child, including the right to continued visitation and the responsibility of support....” 54 So.3d at 413 (citing § 12-15-102(23), Ala.Code 1975, a provision in the new Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala.Code 1975; but see former Ala.Code 1975, § 12-15-1(24), which was substantially similar to § 12-15-102(23)).

To support his argument that the juvenile court exceeded its discretion by awarding him visitation with the child only every other weekend of each month, the father points to evidence indicating that the maternal aunt agreed that the child should have a relationship with the father. However, it appears that the juvenile court considered that evidence, and, despite the fact that the father did not have a relationship with the child at the time of the hearing, the juvenile court allowed the father visitation with the child every other weekend. There is no indication that the father will not be able to develop a meaningful relationship with the child pursuant to his visitation award. Moreover, the father is free to petition the appropriate court for a modification of his visitation rights in the future. Based on the argument presented by the father, we cannot conclude that the juvenile court exceeded its discretion by awarding the father visitation with the child only every other weekend of each month and at all other times to which the parties agree.

Accordingly, we conclude that the judgment of the juvenile court is due to be affirmed.

AFFIRMED.

PITTMAN and THOMAS, JJ., concur.

THOMPSON, P.J., and MOORE, J., concur in the result, without writings.

      . That judgment does not appear in the record on appeal. This procedural history was gleaned from testimony presented at the ore tenus hearing in the underlying proceeding.

      . Former § 12-15-32 was repealed on January 1, 2009, the date the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala.Code 1975, became effective. See Act No. 2008-277(a), Ala. Acts 2008.

      .Because of the adoption of the new Alabama Juvenile Justice Act, there is no prece-dential value to this jurisdictional analysis for proceedings initiated on or after January 1, 2009. See, e.g., Ex parte T.C., 63 So.3d 627 (Ala.Civ.App.2010).

      . When he was asked how long he had been back in Alabama, the father responded, "not even a year-and-a-half,” and he later agreed with counsel's statement that he had been back in Alabama for 18 months. The father was apparently referring to his move from Florida to Gulf Shores, not a move from Florida to the area near Walker County.

      . The father argues that parts of the juvenile court’s specific findings of fact in paragraphs 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 19, 20, 21, and 22 are unsupported by evidence in the record. The father has not challenged the juvenile court's finding that the evidence demonstrated that the father placed his own interests and desires above the child’s.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    B.R.F. v. A.V.F.
    2090872.
    Court of Civil Appeals of Alabama.
    March 4, 2011.
    Rehearing Denied April 15, 2011.

      John D. McCord of McCord & Martin, Gadsden, for appellant.
    Jack W. Torbert, Jr., of Torbert & Tor-bert, P.A., Gadsden, for appellee.
   BRYAN, Judge.

B.R.F. (“the father”) appeals from a judgment entered by the Etowah Circuit Court (“the trial court”) that divorced him from A.V.F. (“the mother”) insofar as that judgment awarded the mother sole physical custody of the parties’ child, failed to require the mother to refinance the mortgage on the marital residence, and required the father to pay a portion of the mother’s student-loan debt.

Background and Procedural History

The parties were married in August 2005, and one child, a girl, was born of the marriage in September 2006. The father filed for a divorce on June 24, 2009, and the mother subsequently filed a counterclaim for a divorce. The trial court entered a pendente lite order that awarded the mother possession of the marital residence, awarded the parties joint legal custody of the child, awarded the mother primary physical custody of the child, and awarded the father visitation with the child. The father was also ordered to pay the mother pendente lite alimony and child support.

After conducting an ore tenus hearing, the trial court entered a judgment divorcing the parties on the ground of incompatibility of temperament. Pursuant to that judgment, the parties were awarded joint legal custody of the child, the mother was awarded primary physical custody of the child, the father was awarded specific visitation with the child, and the father was ordered to pay the mother child support. The judgment awarded the mother all title to and interest in the marital residence, required the mother to pay the remaining debt on the marital residence, awarded each party all the personal property in his or her possession, awarded each party the vehicle in his or her possession, ordered each party to be responsible for the debt on the vehicle in his or her possession, and ordered the father to pay the mother $7,000, which represented a portion of the mother’s total student-loan debt.

The father filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., in which he challenged, among other things, the award of primary physical custody to the mother, his child-support obligation, and the requirement that he pay a portion of the mother’s student-loan debt. The father also argued that the judgment “should provide for a certain time in which [the mother] should be allowed to have [the father’s] name removed from the [mortgage on the marital residence].... ” The trial court subsequently entered an order granting the father’s postjudgment motion by modifying the father’s child-support obligation to $400 a month and by requiring the mother to “diligently seek refinancing to allow [the father]’s name to be removed from the mortgage....” at the time that she “finishes school and obtains full-time employment.” The father timely appealed.

Issues

On appeal, the father argues that the trial court erred by awarding the mother sole physical custody of the child, by failing to order the mother to refinance the mortgage on the marital residence at a “time certain,” and by requiring the father to repay a portion of the mother’s student-loan debt.

Facts

Before the start of the final hearing on March 29, 2010, the parties stated their agreement on the record that the mother would be awarded the marital residence, that she would be required to pay all the indebtedness on the marital residence, that each party would be awarded the personal property in his or her possession, and that each party would be awarded the vehicle in his or her possession. The mother testified that the marital residence was encumbered by a mortgage and that the balance of the mortgage at the time of the final hearing was approximately $80,000.

At the time of the final hearing, the mother was 27 years old, and she was a student at Jacksonville State University seeking a degree in art and art history. She planned to graduate from Jacksonville State University in the fall of 2010, and then she planned to go to the University of Alabama at Birmingham for one year to get her teaching certificate. The mother also worked part-time, approximately 14 to 20 hours a week, at an establishment called “The 215,” earning $8.50 an hour.

The mother stated that the father had been unemployed at certain points during the parties’ marriage and that the parties had been required to use her student-loan income to pay household utility bills, to pay for day-care expenses for the child, and to pay for repairs to the marital residence. The mother testified that her student-loan debt totaled approximately $30,000, and she asked the trial court to require the father to repay $10,000 as the portion of her student-loan debt that was used for the benefit of the father during the marriage.

The father, who was 29 years old at the time of the hearing, testified that he knew that some of the mother’s student-loan income had been used to pay for repairs on the marital residence and that the parties had occasionally used her student-loan income to pay the utility bills associated with the marital residence. The father estimated that approximately $1,500 of the mother’s student-loan income had been used to pay utility bills.

According to the father and several witnesses testifying on his behalf, the father had been the child’s primary caregiver, had cooked meals for the family, had potty-trained the child, had been the child’s primary disciplinarian, and had been responsible for cleaning the marital residence. The mother had been a college student off and on throughout the parties’ marriage, and, according to the father, the mother was always preoccupied with her school work when she was at home. However, the mother, along with several other ■witnesses, testified that the mother had been the child’s primary caregiver and had managed the parties’ household.

The father stated that, during the pen-dency of the divorce proceeding, the mother had offered him visitation with the child in addition to his scheduled pendente lite visitation because the child had expressed her desire to see the father. According to the father, between September 2009 and March 2010, the mother had offered the father between two and eight additional visitation days a month. The father testified that the mother had not allowed him to have additional visitation time with the child after he threatened to stop paying child support because he had custody of the child so often. The father admitted that he had denied the mother’s request for additional visitation time with the child during the 2009 Christmas holidays. The mother testified that her mother and father had divorced when she was a child, that she had been raised primarily by her father, and that she knew what it was like to see one parent only four days a month, so, she said, she offered the father more opportunities to see the child for the child’s sake.

At the time of trial, the father was living in a two-bedroom apartment, and he stated that there was ample room for the child to live with him. The father worked as a corrections officer, and his work schedule was on a 2-week pattern in which he worked a 12-hour shift, from 6:00 p.m. to 6:00 a.m., on Sunday, Wednesday, and Thursday the first week and in which he worked the same 12-hour shift on Monday, Tuesday, Friday, and Saturday the second week. The father stated that he wanted the trial court to allow the mother to care for the child on the days that he had to work.

In February 2008, the mother became concerned that the child had been sexually abused by a 19-year-old male family friend who had been babysitting the child. According to the mother, one evening when she returned home after the family friend had been babysitting the child, the child suddenly grabbed the mother’s hand and began simulating a sexual act. The mother immediately made a video recording of the child simulating the sexual act. According to testimony presented during the pendente lite hearing and the final hearing, the mother, in the video, repeatedly demanded that the child repeat the sexual act that she had demonstrated to the mother. The child did not immediately repeat the act; instead, she did so only after the mother’s repeated requests and after the mother stuck her hand in front of the child’s face. The mother admitted that she was very upset at the time she made the video and that she had handled the situation inappropriately because she had been insistent that the child repeat the sexual act. On the advice of her father, the mother reported the incident to the Department of Human Resources (“DHR”). According to the father, DHR had investigated the mother’s allegations and, because of the child’s age, had found that there was not enough evidence to take further action.

The father testified that the parties had argued during the marriage about the sexual-abuse allegations made by the mother. The father admitted that he had never believed that their family friend had sexually abused the child, and the father testified that he had told the mother that if she continued to accuse innocent people of sexually abusing the child, she would loose custody of the child. According to the father, the mother had responded to his comment by punching him two or three times. After that incident, the father called the police, but he did not file a police report.

The mother and the father attended counseling sessions with Ron Campbell, a licensed professional counselor, after DHR had closed its investigation, and, during one of their sessions, the child climbed into the mother’s lap and began simulating the same sexual act that had initially caused the mother concern. According to the mother, Campbell, who watched the incident occur, stated that he was certain something inappropriate had happened to the child. Campbell testified that the child’s actions were “in no way ... age-appropriate behavior” and that they were not normal child-like actions, as the father had suggested. Campbell stated that the video recording that the mother had made after she initially witnessed the child exhibiting inappropriate behavior could be characterized as leading and that the mother had exercised poor judgment in making the video, but he also stated that the mother was not trying to hurt the child by making the video. The father submitted the video recording made by the mother into evidence to demonstrate what he described as the mother’s manipulation of the child. The trial-court judge stated on the record during the final hearing that he had been unable to play the video recording, but the trial-court judge stated that he would accept a substitute copy of the video made by the mother.

The father admitted that he had watched pornography that included the particular sexual act that the child had demonstrated to the mother. The father testified that the child had not been exposed to pornography, but he stated that the child had been in the home with him while he was watching pornography when the mother was not at home.

According to the father, the child’s best interests would be served by placing the child in his custody because, he said, he interacts with the child more often than the mother does and he was concerned because the mother had “falsely used” the child by alleging that the child had been sexually abused. The father stated that he was also concerned about the child’s maternal grandmother caring for the child because the mother had told the father that her mother, the child’s maternal grandmother, suffers from bipolar disorder. Furthermore, the father testified that the mother had admitted kissing one of her male friends during the parties’ marriage after the parties had gotten into an argument.

Discussion

On appeal, the father challenges the trial court’s award of sole physical custody of the child to the mother because, he argues, the evidence demonstrated that the mother was not a fit and proper person to have custody of the child. In support of his argument that the mother was unfit to have custody of the child, the father points to evidence indicating that he had been the primary caretaker of the child, that the mother had manipulated the child so she could accuse their family friend of sexually abusing the child, that the mother had never had a steady job, that the mother had trouble controlling her anger, that the mother had kissed another man during the parties’ marriage, and that the mother had allowed the father to have excessive additional pendente lite visitation.

In Ex parte Byars, 794 So.2d 345, 347 (Ala.2001), our supreme court stated the applicable law and standard of review when an appellate court considers a challenge to an initial award of custody:

“Alabama law gives neither parent priority in an initial custody determination. Ex parte Couch, 521 So.2d 987 (Ala.1988). The controlling consideration in such a case is the best interest of the child. Id. In any case in which the court makes findings of fact based on evidence presented ore tenus, an appellate court will presume that the trial court’s judgment based on those findings is correct, and it will reverse that judgment only if it is found to be plainly and palpably wrong. Ex parte Perkins, 646 So.2d 46 (Ala.1994). The presumption of correctness accorded the trial court’s judgment entered after the court has heard evidence presented ore tenus is especially strong in a child-custody case. Id.”

We note that much of the evidence presented to the trial court was disputed, including evidence regarding which party had been the child’s primary caretaker, and the trial court could have determined that the mother had been the child’s primary caretaker. See Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005) (quoting Philpot v. State, 843 So.2d 122, 125 (Ala. 2002)) (a trial court’s findings on disputed facts are presumed correct). Moreover, the trial court could have concluded that, although the mother had made a poor judgment call by making the video recording, the mother had acted appropriately by initiating an investigation of the child’s age-inappropriate behavior. Furthermore, the trial court could have concluded that the best interests of the child would be served by awarding sole physical custody to the mother because the evidence indicated that the mother recognized that it was important for the child to have consistent meaningful contact with her noncustodial parent, even if it required visitation in excess of what was awarded by the trial court. Moreover, the evidence in this case indicated that the mother’s failure to maintain steady employment, considering that she had been a college student throughout most of the parties’ marriage, had no impact on her ability to care for the child, and there was no indication that the mother’s alleged adulterous conduct had any detrimental effect on the child or had otherwise impacted her ability to parent the child. See Giardina v. Giardina, 987 So.2d 606, 618 (Ala.Civ.App.2008) (noting that a parent’s sexual misconduct is only a factor to be considered by a trial court in making a custody determination and that there must be evidence that the parent’s misconduct was detrimental to the child). Accordingly, we cannot conclude that the trial court was plainly or palpably wrong in awarding sole physical custody of the child to the mother.

To the extent that the father argues that the trial court erred by failing to review the video recording of the child made by the mother that the father submitted into evidence, our review of the record does not confirm that the trial court did not view the video before it made its custody determination. Because the record on appeal does not affirmatively demonstrate that the trial court did not review the video submitted into evidence, we will not assume that the trial court failed to do so. See Elliott v. Bud’s Truck & Auto Repair, 656 So.2d 837, 838 (Ala.Civ.App. 1995) (citing Liberty Loan Corp. of Gadsden v. Williams, 406 So.2d 988 (Ala.Civ.App.1981)) (“This court does not presume error. In order for this court to consider an error asserted on appeal, that error must be affirmatively demonstrated by the record.”).

Next, the father asks this court to order the trial court, on the authority of Barnes v. Barnes, 28 So.3d 800 (Ala.Civ. App.2009), to require the mother to refinance the marital residence within a reasonable time certain and, if she fails to do so, to require that the marital residence be sold in order to remove the father’s name from the mortgage on the marital residence. Initially, we note that this court cannot consider the father’s request that we order the trial court to enter an order requiring the sale of the marital residence if the mother does not refinance the mortgage on the marital residence by a specific date because the father did not present that argument to the trial court. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This court cannot consider arguments raised for the first time on appeal.... ”). However, we will consider the father’s argument that the trial court failed to require the mother to refinance the mortgage on the marital residence and that the trial court failed to require the mother to do so by a date certain.

In Barnes, the husband was awarded the parties’ marital residence pursuant to an amended judgment of divorce; in conjunction with that award, the husband was to be solely responsible for payment of the mortgages secured by the marital residence, and he was to indemnify and hold the wife harmless as to the debt evidenced by the mortgages on the marital residence. Id. at 800. Over two years later, at the request of the wife, the trial court entered an order requiring the husband to remove the wife’s name from any mortgages associated with the marital residence within 120 days. Id. at 801. The husband appealed, and this court held that the trial court’s order requiring the husband “to refinance the mortgages on the former marital residence constitute^] an impermissible modification of the property-division provisions of the amended divorce judgment.” Id. at 803.

The father argues that the provision in the amended judgment that requires the mother to “diligently seek refinancing” does not actually require the mother to refinance the marital residence. Therefore, under the authority of Bames, the father would not be able to require the mother to refinance the marital residence in the future if the divorce judgment does not specifically require her to do so. However, we disagree with the father’s assertion that the trial court did not require the mother to refinance the mortgage on the marital residence. Considering the father’s initial postjudgment request for relief — that the trial court “provide for a certain time in which [the mother] should be allowed to have [the father’s] name removed from the [mortgage on the marital residence]” — and considering the trial court’s postjudgment order granting that specific request for relief by ordering the mother to “diligently seek refinancing” as soon as she finishes school and obtains full-time employment, we conclude that the clear intent of the trial court was to require the mother to refinance the mortgage on the marital residence. See Boyd v. Franklin, 919 So.2d 1166, 1171 (Ala.2005) (quoting Price v. Price, 360 So.2d 340, 343 (Ala.Civ.App.1978)) (“ ‘If there is uncertainty and ambiguity in a ... judgment, the [reviewing] court must construe it so as to express the intent of the ... trial judge.’ ”).

We note, however, that nothing in Barnes addresses the father’s argument that the trial court’s judgment should be reversed because it did not give a “reasonable time certain” as to the date the mother must refinance the mortgage on the marital residence. The evidence taken at trial indicated that the mother was a college student, that she worked only part-time, and that the mortgage debt on the marital residence totaled approximately $80,000. The trial court’s judgment setting the time that the mother must begin to seek to refinance the mortgage on the marital residence clearly takes into account the evidence in the record indicating that the mother did not have the means to refinance the mortgage on the marital residence at the time the judgment was entered. Although the judgment does not require the mother to refinance the mortgage on the marital residence by a specific date, the father has not cited any authority to support his argument that the trial court was required to make such as order. See Rule 28(a)(10), Ala. RApp. P. (requiring arguments presented on appeal to be supported by cases, statutes, and any other authority relied on). Decisions regarding how an equitable division of property should be effectuated are left to the discretion of the trial court, see Grelier v. Grelier, 63 So.3d 668 n. 5 (Ala.Civ.App.2010) (citing Roberts v. Roberts, 802 So.2d 230, 235 (Ala.Civ.App.2001)) (recognizing the trial court’s discretion in effectuating an equitable property division in a divorce action), and this court will not reverse a part of a trial court’s judgment that is left to its discretion unless it is shown that the trial court exceeded its discretion or that the judgment is plainly or palpably wrong. See Romano v. Romano, 703 So.2d 374, 375 (Ala.Civ.App.1997). Because we cannot conclude that the trial court exceeded its discretion regarding the refinancing provision, or that the refinancing provision was plainly and palpably wrong, that aspect of the divorce judgment requiring the mother to refinance the mortgage on the marital residence after she finishes school and obtains full-time employment is affirmed.

Finally, the father argues that the trial court erred when it ordered the father to pay the mother $7,000, which represented a portion of the student-loan debt taken out by the mother during the marriage that was used for the benefit of the father during the marriage. The father argues that the mother’s student-loan debt cannot be considered a joint marital debt of the parties and that, therefore, the trial court had no jurisdiction to order the father to pay a portion of the mother’s student-loan debt. Although the evidence indicated that the mother had taken out student loans in her name for her use in completing her postsecondary education, the evidence also indicated that the parties had used the income the mother received from those loans for the benefit of both parties during the marriage. We note that, generally, it is left to the discretion of the trial court to decide how the payment of debts incurred during a marriage will be divided in a judgment of divorce. See Scruggs v. Scruggs, 456 So.2d 319, 323 (Ala.Civ.App.1984) (“In providing for the payment of debts, the trial court is granted much latitude in the exercise of its judicial discretion, and we may not disturb the findings of a trial court upon such a matter unless the holding was so palpably wrong as to constitute an abuse of discretion.”).

The father has not cited any authority to support his argument that the trial court could not have considered the mother’s student-loan debt to be marital debt.

“Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ ... [I]t is well settled that a [party’s] failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments. Ex parte Showers, 812 So.2d 277, 281 (Ala.2001).”

State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005). Because the father has failed to cite any authority to support his argument, we will not consider it. Accordingly, the provision of the divorce judgment requiring the father to pay the mother $7,000 is affirmed.

Conclusion

The judgment of the trial court is affirmed. The father’s motion to strike specific portions of the mother’s brief on appeal is denied, and the mother’s motion to strike the father’s reply brief is denied. However, we note that this court has considered only the evidence properly presented to the trial court and contained in the record on appeal.

AFFIRMED.

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

      . This court has determined that an award of "primary physical custody” to a parent should be construed as an award of sole physical custody to that parent. Cf. Smith v. Smith, 887 So.2d 257, 262 (Ala.Civ.App. 2003); § 30-3-151, Ala.Code 1975 (defining the terms to be used in a custody determination).

      . The father testified at an August 2009 pen-dente lite hearing that the mother’s grandmother later reported to DHR that the father may have sexually abused the child. However, according to the father, the mother reported to DHR that she did not believe that the father had sexually abused the child. The parties stipulated that, by the time of the final hearing in March 2010, DHR had not made any indicated findings of sexual abuse perpetrated by the father against the child and that DHR was no longer pursuing any investigation of the father.


author: MOORE, Judge.

text:
    Jessie Mae Witcher STONE v. Ed PARISH, Jr., as administrator of the estate of Eloise Witcher, deceased.
    2100204.
    Court of Civil Appeals of Alabama.
    March 25, 2011.

      James D. Hamlett, Montgomery, for appellant.
   MOORE, Judge.

Jessie Mae Witcher Stone appeals from a judgment of the Montgomery Circuit Court (“the circuit court”) dismissing her contest of the will of Eloise Witcher upon the motion of Ed Parish, Jr., as administrator of the estate of Eloise Witcher (“the estate”). We reverse.

Procedural History

On December 16, 2009, Stone filed a will contest in the circuit court, stating, in pertinent part:

“1. ... Stone, is the daughter of ... Witcher. As the daughter of ... Witch-er, she is an heir to her estate. That document styled Last Will and Testament of ... Witcher dated the 9th day of January, 2004, was probated by the Probate Court of Montgomery County, Alabama, case no. 07-00737.
“2. Said Will should not have been probated as it was not duly executed by [Witcher] when she was of sound mind or had mental capacity to make a testamentary disposition of her property. Furthermore, such Will was the product of mistake, undue influence and fraud and was not executed in accordance with the laws of the State of Alabama.
“3. ... Stone files this written demand contesting said Will and execution of the estate and requests the Circuit Court of Montgomery County, Alabama, take jurisdiction of this matter and that all issues be settled therein in accordance with law.
“4. ... Stone demands that the issues herein be tried by a jury in accordance with the law.
“WHEREFORE, [Stone] requests relief as follows:
“1. An Order transferring the contest of the Last Will and Testament of ... Witcher to the Circuit Court of Montgomery County, Alabama; and,
“2. Any such other, further and different relief as may be appropriate under the circumstances.”

On October 1, 2010, the estate filed a motion to dismiss the will contest, stating:

“Procedural Background
“On April 21, 2009, a Petition for Probate of Will and Letters of Administration with Will Annexed was filed in the Probate Court of Montgomery County, Alabama. Two waivers were attached to the petition. The waivers were signed by two (2) of [Witcher’s] nine (9) children. On April 23, 2009, the Honorable Reese McKinney issued an order setting the petition for hearing on June 16, 2009.
“A formal hearing was held on June 16, 2009, with proper notice given to all interested parties. The seven (7) remaining children were served personally or by certified mail. Each witness on the hearing date gave direct testimony and was cross-examined. After all the testimony was taken the Honorable Reese McKinney issued Letters of Administration with the Will Annexed to Ed Parish, Jr.
“Thereafter, an inventory was filed on August 11, 2009, in the probate court of Montgomery County, Alabama. On December 16, 2009, a second will contest action was filed in the circuit court of Montgomery County, Alabama. This action was filed by ... Stone, who was present at the hearing held on June 16, 2009, before Judge Reese McKinney. [Witcher’s] will was contested on the grounds it was not properly executed. This matter was set for trial on October 4, 2010, before the Honorable Eugene Reese.”
“ARGUMENT
“Under current Alabama law, ‘Appeals to the circuit court in such cases shall be within the time hereinafter specified: from the decree, judgment or order on a contest as to the validity of a will, to be taken within 42 days after the determination of the contest;’ Ala. Code 1975, § 12-22-21(1). This statute required [Stone] to appeal the decision rendered by the Honorable Reese McKinney by [July] 28, 20[09]. Clearly [Stone’s] will contest action was not filed in a timely manner as required by law. If a contestant wishes to appeal a probate judgment to the circuit court, the contestant must file[ ] his or her appeal within the time frame set forth in Section 12-22-21. This action must have been filed within 42 days of the probate court’s decree regarding the validity of the will.
“Because the action was not timely filed in the present case, this Honorable Court never acquired subject-matter jurisdiction. ‘When the absence of subject-matter jurisdiction is noticed by, or pointed out to, the trial court, that court has no jurisdiction to entertain further motions or pleadings in the case. It can do nothing but dismiss the action forthwith.’ Cadle Company v. Shabani, 4 So.3d 460, 463 (Ala.2008).
“Based on the foregoing, [the estate] respectfully requests] this motion to dismiss be GRANTED with prejudice.”

On October 1, 2010, Stone filed a response to the estate’s motion to dismiss, stating;

“1. The [estate] moves to dismiss [Stone’s] Petition for Will contest on the basis that the Court lacks subject-matter jurisdiction. [The estate’s] argument is that the Probate Court for Montgomery County, Alabama held a hearing in this matter on the merits on or about June 16, 20[09], and at that hearing [Stone] and some of her siblings argued that the Last Will and Testament of ... Witcher that was filed for probate with the Probate Court should be ruled invalid. He argues that [Stone’s] argument below was substantially the same as is set forth in her Petition that is now pending before this Court.
“2. Counsel for [Stone] did not represent [Stone] in the Probate Court below. However, based upon information and belief, there was a hearing before the Probate Court as alleged by the [estate]. At that hearing, [Stone] and some other siblings argued that ... Witcher was not of sound mind when she executed the Will that was admitted into probate. In addition, [Stone] and some other siblings argued that Saketo Witcher used undue influence on [Witch-er] to get her to execute the Will in question. In opposition to this it appears that James Wilson, Esquire, the preparer of the Will in question, testified at length as to the preparation of the Will and the circumstances of its execution by [Witcher], Saketo Witcher also testified in response to the allegation that he had used undue influence, denying all allegations of wrongdoing.
“3. Code of Alabama 1975, § 43-8-199 provides, in pertinent part, that any person interested in any will who has not contested the same under the provisions of this article, may ... contest the validity of the will in the circuit court in the county in which such will was probated. The [estate] argues that [Stone] already contested the Will below and should not be allowed ‘two bites at the apple.’ [The estate] argues that [Stone’s] only remedy below was to file an appeal to the Circuit Court or to the Supreme Court of Alabama within 42 days of the issuance of the Probate Court’s Order admitting the Will to Probate on June 16, 2009 pursuant to Code of Alabama 1975, § 12-22-21.
“4. The question before the Court is whether the hearing below constituted a bar to the institution of the will contest pursuant to § 43-8-199. Although the parties were the same and the issues were the same and the Probate Court had jurisdiction to hear a ‘will contest,’ [Stone] argues that the case below was not truly a ‘will contest.’ [Stone] did not formally request that the Probate Court hear a “will contest.’ It appears that the hearing before the Court ‘turned into’ a ‘will contest’ and that the Probate Court allowed argument ‘contesting’ the will without objection from either party. There is apparently no recording of the hearing below. [Stone] did not have an attorney and does not believe that the hearing below should be considered a ‘will contest,’ thus barring her from proceeding in the Circuit Court in the instant action.”

On October 4, 2010, the circuit court entered a judgment dismissing the will contest. On November 15, 2010, Stone filed her notice of appeal to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

“ ‘A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.’
“Newman v. Savas, 878 So.2d 1147, 1148-49 (Ala.2003). Questions of law are reviewed de novo. Christian v. Murray, 915 So.2d 23, 25 (Ala.2005) (citing State v. American Tobacco Co., 772 So.2d 417, 419 (Ala.2000)); Ex parte Graham,, 702 So.2d 1215, 1221 (Ala.1997); and Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala.1994).”

Queen v. Harden, 924 So.2d 712, 714 (Ala. Civ.App.2005).

Discussion

On appeal, Stone argues that the circuit court erred in dismissing her will contest. Specifically, she argues that no will contest had been filed “in writing” in the probate court pursuant to § 43-8-190, Ala.Code 1975, and, thus, that the circuit court had jurisdiction over the will contest pursuant to § 43-8-199, Ala.Code 1975.

“In Alabama a will may be contested in two ways: (1) before probate, a contest may be instituted in the probate court pursuant to Ala.Code 1975, § 43-8-190; or (2) after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated, pursuant to Ala.Code 1975, § 43-8-199. Stevens v. Gary, 565 So.2d 73 (Ala.1990). In order to contest a will under either of these methods, the contestant must strictly comply with the statutory language in order to quicken jurisdiction of the appropriate court. Bullen v. Brown, 535 So.2d 76 (Ala. 1988).”

Boshell v. Lay, 596 So.2d 581, 583 (Ala.1992). Section 43-8-199 provides:

“Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated.”

In the present case, the estate filed a motion to dismiss arguing that Stone had failed to appeal from the probate court’s judgment admitting the will to probate. As noted in Boshell, swpra, however, Stone had a statutory right to file an original will contest in the circuit court provided that she strictly complied with the requirements set forth in § 43-8-199. In its motion to dismiss, the estate did not argue that Stone had failed to comply with § 43-8-199 other than to make a vague reference to Stone’s December 16, 2009, will contest as a “second will contest.” We note that the estate did not argue that Stone had actually contested the will in the probate court, nor did it provide any proof that Stone had, in fact, filed a will contest in the probate court.

Without the benefit of any specific argument or supporting evidence indicating that Stone had previously contested the will in the probate court, we conclude that the circuit court erred in dismissing Stone’s will contest. See, e.g., Jeannie’s Grocery v. Baldwin County Elec. Membership Corp., 331 So.2d 665, 667 (Ala.1976) (holding that dismissal for lack of subject-matter jurisdiction was premature when doing so required speculation, because there were no facts available other than those set forth in the complaint).

Accordingly, we reverse the judgment of the circuit court and remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . We note that, in her response to the motion to dismiss, Stone affirmatively stated that she had not filed a will contest in the probate court.


author: THOMAS, Judge. BRYAN, Judge,

text:
    Ex parte EL REPOSO NURSING HOME GROUP, INC. (In re Carole Patterson v. El Reposo Nursing Home Group, Inc.).
    2100113.
    Court of Civil Appeals of Alabama.
    March 25, 2011.

      Tom Burgess and Ethan R. Dettling of Smith, Spires & Peddy, P.C., Birmingham, for petitioner.
    Terry B. Rochester of Harold G. Peck & Associates, Florence, for respondent.
   THOMAS, Judge.

In April 2006, Carole Patterson was employed by El Reposo Nursing Home Group, Inc., as a certified nursing assistant in a nursing home run by El Reposo. On April 21, 2006, Patterson was assisting a resident of the nursing home and she fell. She reported the incident, and El Reposo filed an Employer’s First Report of Injury indicating that Patterson had pulled her back assisting a patient. Patterson was sent to see a physician, who diagnosed her with an “upper thoracic strain,” and she returned to work the following day. Patterson left the employment of El Reposo in May 2006.

Patterson had seen a physician in 2004 and had undergone an MRI at that time. The 2004 MRI revealed a bulging disk at C6-7. Patterson had begun seeing her personal physician, Dr. Jeff Goodman, in February 2006, complaining of pain in her shoulders, neck, back, and arms. Patterson had seen Dr. Goodman on April 12, 2006, for those same complaints.

After her accident on April 21, Patterson next saw Dr. Goodman on May 81, complaining of the same general symptoms in her neck and shoulders. Patterson did not tell Dr. Goodman that she had injured herself at work on April 21. In fact, although Patterson saw Dr. Goodman on August 3, October 18, and October 28, 2006, each time complaining of the same or similar symptoms that had continued to worsen, Patterson never mentioned her April 21 work-related accident to Dr. Goodman. Patterson first related her symptoms and the pain she was feeling to the April 21, 2006, accident on October 9, 2007, when she sought pain-management treatment from Dr. Michael Gosney. Dr. Goodman then referred Patterson to an orthopedic surgeon for consultation and possible surgery.

In May 2007, Patterson filed an action against El Reposo in which she sought workers’ compensation benefits. On Patterson’s motion, the trial court bifurcated the trial, holding a trial on the issue of compensability only on May 29, 2009. After that hearing, in June 2009, the trial court entered a judgment finding Patterson’s injuries compensable. In pertinent part, the court’s order, which did not contain detailed findings of facts and conclusions of law, reads:

“On May 29, 2009, the court conducted a trial on the issue of legal and medical causation, which addressed coverage of this claim under the Workers’ Compensation Act.
“The court finds that [Patterson] presented substantial evidence that she suffered an injury arising out of and in the course of her employment as the phrase is defined in the Code of Alabama. The court therefore finds the totality of the evidence substantial enough to satisfy the required showing of medical causation.”

In October 2009, Dr. Martin Jones, the physician El Reposo selected as Patterson’s authorizing treating physician, examined Patterson. Dr. Jones determined that Patterson was not a candidate for cervical disk surgery. He said that Patterson would benefit from pain-management treatment but further stated that such treatment should be paid for by private insurance “since she was having the same symptoms prior to her [work-related] injury.” Based on Dr. Jones’s opinion that any pain-management treatment was not necessitated by the work-related injury, El Reposo refused to authorize pain-management treatment for Patterson. Patterson then filed a motion seeking to have El Reposo held in contempt and to order El Reposo to provide pain-management treatment.

The trial court declined to hold El Repo-so in contempt. However, the trial court ordered that El Reposo either provide another orthopedic physician to examine Patterson to determine the necessity or appropriateness of surgical intervention or provide Patterson pain-management treatment. El Reposo offered Patterson an appointment with a second orthopedic physician, who Patterson rejected. El Reposo then presented Patterson with a panel of four orthopedic physicians from which to choose; Patterson selected Dr. E. Carter Morris.

Dr. Morris examined Patterson on March 22, 2010. Like Dr. Jones, Dr. Morris felt that Patterson was not a good candidate for cervical surgery. He also stated that he agreed with Dr. Jones that Patterson may need pain-management treatment but that any such treatment “should be paid for by her primary health insurance.” An excerpt of Dr. Morris’s deposition testimony indicates that he did not think that the pain-management treatment should be paid for by El Reposo because Patterson had been “showing evidence of pain before the injury.” Dr. Morris also testified that he did not think that Patterson’s symptoms related to Patterson’s April 2006 cervical strain or any of the findings on her MRI scans. He stated that he believed that Patterson had reached maximum medical improvement (“MMI”) and that, in his practice, he typically placed a person who suffered a cervical strain at MMI between three and six months after the injury. Based on Dr. Morris’s opinion, El Reposo again refused to provide pain-management treatment to Patterson, prompting her to file another motion to hold El Reposo in contempt and to seek an order compelling medical treatment.

The trial court granted Patterson’s motion on September 27, 2010, and ordered El Reposo to provide pain-management treatment to Patterson within 10 days. In its order, the trial court stated that it had “previously found that [Patterson] presented substantial evidence that her injuries and symptoms of pain are the result of an injury arising out of and in the course of her employment on April 21, 2006.” It is from this order that El Repo-so seeks mandamus relief.

“ ‘ “[Mjandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Horton, 711 So.2d 979, 983 (Ala.1998).’ ”

Ex parte Builders & Contractors Ass’n of Mississippi Self-Insurer’s Fund, 980 So.2d 1003, 1006 (Ala.Civ.App.2007) (quoting Ex parte Alloy Wheels Int’l, Ltd., 882 So.2d 819, 821 (Ala.2003), overruled on other grounds by Ex parte DBI, Inc., 23 So.3d 635, 657 (Ala.2009)).

El Reposo argues that the trial court’s order overrides the authority of the authorized treating physician, Dr. Morris, without a determination, or any evidence, that Dr. Morris’s decision not to refer Patterson to pain-management treatment because it was not required to treat her work-related injury was unreasonable. See Ala.Code 1975, § 25-5-77(a) (stating, among other things, that an employer must pay for “reasonably necessary medical and surgical treatment” and providing that disputes as to the necessity of medical services requested are to be determined by the court); Ex parte Wal-Mart Stores, Inc., 794 So.2d 1085, 1088 (Ala. 2001) (explaining that the authorized treating physician is to direct the treatment of the injured employee); Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1046 n. 4 (Ala.Civ.App.2002) (“[Wjhere an employee has received recommendations from both the initial and the second authorized treating physicians in accordance with the procedures outlined in § 25-5-77(a), and the employee is able to prove that the treatment recommended by the authorized physicians does not fall within the parameters of what would be ‘reasonably necessary’ to treat his or her injury or illness, but that another (unauthorized) physician has recommended a treatment that does fall within such parameters, nothing in the first or last sentences of § 25-5-77(a), nor our caselaw, prevents an employee from then proceeding to seek judicial vindication of his right to the latter treatment.”); and City of Auburn v. Brown, 638 So.2d 1339, 1341 (Ala.Civ.App.1993) (stating that the authorized treating physician and not the employer is to dictate the injured employee’s medical treatment). Patterson argues, however, that Dr. Morris was not making a treatment decision but, instead, by concluding that any pain-management treatment would relate to a preexisting injury and not the work-related injury, was making a decision regarding medical causation of her pain symptoms, an issue that had already been determined in Patterson’s favor by the trial court.

Our review of this mandamus petition is complicated by the fact that the trial court, in accordance with prior practice, did not comply with Ala.Code 1975, § 25-5-88, by making detailed findings of fact and conclusions of law in its June 2009 order concluding that Patterson had established medical causation and that her injuries were compensable. This court recently denied a petition for the writ of mandamus seeking review of a compensa-bility determination, in part, because the trial court had not made detailed findings of fact and conclusions of law in its order, making review of the determination difficult if not impossible for this court. Ex parte Cowabunga, Inc., 67 So.3d 136, 139 (Ala.Civ.App.2011). As we explained, the trial court’s sparse order left us

“unable to address [the employer’s argument] because the trial court has failed to enter findings of fact and conclusions of law. Section 25-5-88, Ala.Code 1975, requires circuit courts, when deciding any controversy as to the right to benefits under the Act, to determine that controversy by filing with the clerk of the circuit court ‘a statement of the law and facts and conclusions as determined by [the] judge.’ In this case, the trial court decided the controversies regarding the compensability of the employee’s injury and the right of the employee to medical benefits under the [Workers’ Compensation] Act, but it did not file the requisite findings of fact and conclusions of law, stating in its judgment only that the employee had sustained a personal injury due to an accident arising out of and in the course of his employment on May 29, 2009, and ordering the employer to ‘approve the medical treatment recommended by the [employee’s] authorized treating physician.’ This court has repeatedly reversed similar judgments for failing to apprise this court of the basis for the trial court’s decision as contemplated by § 25-5-88.”

Ex parte Cowabunga, 67 So.3d at 139. We then denied the petition with instructions that the trial court enter an amended order containing the. findings of fact and conclusions of law required by § 25-5-88. Id.

Because we are again unable to discern the parameters and the basis of the trial court’s compensability determination, we again find it necessary to deny the employer’s petition for the writ of mandamus at this stage of the proceedings and order that the trial court, in compliance with § 25-5-88 and Ex parte Cowabunga, enter an amended order addressing the com-pensability issue. At that time, El Reposo may again petition this court for a ■writ of mandamus.

PETITION DENIED WITH INSTRUCTIONS.

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

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

For the reasons expressed in my special writing in Ex parte Cowabunga, Inc., 67 So.3d 136, 140 (Ala.Civ.App.2011) (Bryan, J., concurring in part and dissenting in part), I respectfully dissent.