author: PER CURIAM. MURDOCK, Justice

text:
    Ex parte Tonya BLACKSTOCK. (In re Mark Davis v. Tonya Blackstock).
    1061445.
    Supreme Court of Alabama.
    Sept. 11, 2009.
    Rehearing Denied Feb. 19, 2010.

      Lindsey Mussleman Davis of Holt, Mus-sleman, Holt & Morgan, Florence, for petitioner.
    Heath F. Trousdale, Florence, for respondent.
   PER CURIAM.

This case involves a dispute between Tonya Blackstock (“the mother”) and Mark Davis (“the father”) concerning the custody of their daughter (“the child”).

A. Procedural History

The Court of Civil Appeals in Davis v. Blackstock, 47 So.3d 796 (Ala.Civ.App.2007), summarized the history of this case:

“The father and the mother married on November 11, 2000. Four months later, while they were residing in Tennessee, the father and the mother separated. The mother was pregnant with the child at the time of the separation. Subsequently, a petition for divorce was filed in the Chancery Court for Lawrence County, Tennessee (‘the Tennessee trial court’). Before the Tennessee trial court ruled on the divorce petition filed with that court, the father and the mother moved to Alabama, where the mother gave birth to the child on December 27, 2001.
“On February 15, 2002, the Tennessee trial court entered a judgment divorcing the father and the mother. In essence, the Tennessee judgment granted the father and the mother joint custody, with the mother receiving primary physical custody and child support. In June 2002, while the father, the mother, and the child continued to reside in Alabama, the father petitioned the Tennessee trial court for a modification of its February 15, 2002, judgment with regard to custody. On September 3, 2003, the Tennessee trial court modified its divorce judgment by granting the father equal physical custody on a four-day rotating basis and terminating the father’s child-support obligation.”

47 So.3d at 797. The mother appealed, and the Tennessee Court of Appeals affirmed the custody-modification order but remanded the cause for further proceedings relating to ancillary matters. Id. When the parties moved to Alabama, the mother moved to Florence and the father moved to Decatur.

In February 2006, the mother filed a petition in the Lauderdale Circuit Court seeking a modification of custody and child support. Reiterating statements from her sworn answers to interrogatories, the mother testified at trial as to several allegedly material changes in circumstances that, she claimed, warranted a change in the September 2003 custody award, including that the child would begin attending pre-kindergarten classes (“the pre-K program”) in the fall of 2006; that the pre-K program was a “structured” program and the child would be required to attend every day; that the child would need daily “structure and stability” at that time; that the four-day rotating-custody arrangement (“the four/four custody arrangement”) “minimize[d] stability” for the child and would make it more difficult to stay on a routine with regard to the pre-K program; that as “[the child’s] gotten older, she’s shown increased anxiety over the constant change of environment, and has voiced dissatisfaction with the constant change”; and that the father “told the Tennessee court he would move to Florence when [the child] got older” and he has not done so.

The father opposed the mother’s modification petition, and, a few days before trial, he filed a counterpetition seeking “primary physical custody” of the child on the grounds that the mother had attempted to alienate the child from the father and that she had

“involve[d] the four (4) year old child in adult matters as well as proceeding to enroll the child in an educational type program without consulting and receiving permission from the [father] and knowing that in the current custodial arrangement, the child cannot participate. These are all issues that have developed since the filing of this action, although others exist to support the change of custody.”

After an ore tenus hearing, the Lauder-dale Circuit Court entered a judgment in September 2006 that (1) maintained the joint-legal-custody award to the parents, (2) awarded the mother primary physical custody, (3) awarded the father “standard visitation,” with the addition of visitation “every Tuesday from when the child is discharged from school until 8:00 p.m.,” and (4) ordered the father to pay child support. The father appealed.

In reversing the judgment of the Laud-erdale Circuit Court, the Court of Civil Appeals stated:

“Based on the totality of the evidence, we conclude that the mother failed to meet her burden of showing that a material change of circumstances had occurred that affected the child’s welfare since the last custody order. See, e.g., Watters v. Watters, 918 So.2d 913, 916-17 (Ala.Civ.App.2005). The evidence shows that the only change that has occurred has been the natural progression of the child to pre-kindergarten school. However, the mother has not demonstrated how this change, in the context of the joint-custody arrangement, has affected the child’s welfare or best interest. The evidence shows that the child could attend pre-kindergarten part-time and that the father could instruct the child on the days she did not attend. The child thrived in a similar arrangement in day care. The mother presented no evidence to indicate that the child would not continue to thrive while in pre-kindergarten under the same arrangement. The only other relevant evidence the mother presented showed that the child expressed anxiety at exchanges and that she would miss school, church, and extracurricular activities if the current custody arrangement was maintained. However, as the father points out, even under the physical-custody arrangement approved by the Alabama trial court, the child would still experience exchanges and would still miss activities.
“Accordingly, we reverse the Alabama trial court’s modification of the 2003 custody judgment.”

47 So.3d at 800-01.

In her petition to this Court for a writ of certiorari, the mother contends, in part, that the Court of Civil Appeals’ decision conflicts with prior precedent. Specifically, she argues (1) that the Court of Civil Appeals’ decision conflicts with Lamb v. Lamb, 939 So.2d 918 (Ala.Civ.App.2006), because, she says, the Court of Civil Appeals improperly reweighed the evidence and did not give effect to the presumption of correctness afforded the trial court’s judgment in ore tenus cases and (2) that the decision conflicts with, or misapplies, the holding in Watters v. Watters, 918 So.2d 913 (Ala.Civ.App.2005), on which the Court of Civil Appeals relied. We agree.

B. Standard of Review

Where, 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)).

Also, we note the presumption of correctness accorded to a trial court’s judgment:

“When this Court reviews a trial court’s child-custody determination that was based upon evidence presented ore ten-us, we presume the trial court’s decision is correct: ‘ “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....”’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981).”

Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

As this Court stated in Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996), quoted in part in Lamb, 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 Patra-ñas )(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)).

Further, where, as in the present case, the trial court does not make detailed written findings of fact, we “ ‘will assume that the trial court made those findings [of fact] necessary to support its judgment, unless such findings would be clearly erroneous.’ ” Ex parte Fann, 810 So.2d at 636 (quoting Lemon v. Golf Terrace Owners Ass’n, 611 So.2d 263, 265 (Ala.1992)).

C. Analysis

1. Deference to the Lauderdale Circuit Court’s Findings

The holding of the Court of Civil Appeals is phrased in terms of that court’s conclusion as to whether the mother met her burden of proof: “Based on the totality of the evidence, we conclude that the mother failed to meet her burden [of proof].” 47 So.3d at 800. As noted, however, the question is whether the circuit court heard and saw sufficient evidence that, based on that evidence and the inferences the circuit court reasonably could have drawn from it, the circuit court reasonably could have made the factual findings and reached the conclusion that it reached. After careful review, we conclude that the Court of Civil Appeals failed to give appropriate deference to the circuit court’s implicit findings and resulting judgment.

Upon the mother’s appeal from the September 2003 order of the Tennessee Chancery Court, the Tennessee Court of Appeals issued an unpublished opinion, Davis v. Davis, (No. M2003-02312-COA-R3-CV) (Tenn.Ct.App.2004), a copy of which was introduced into evidence at trial in the present case. In that opinion, the Tennessee Court of Appeals stated the following concern about the four/four custody arrangement:

“During oral argument, this court expressed some concern about the long-term viability of the revised residential schedule because the parents are currently living in different cities that are more than one hour’s drive apart. Shuttling [the child] back and forth every four days will no longer be in her best interests when she begins school. [The mother] insists that these potential difficulties provide a sufficient basis to vacate the revised residential schedule and to designate her as the primary residential parent. We respectfully disagree. Courts must base their decisions on the evidence of what has already happened, not on speculation about what might happen in the future. These parents have the power to avoid these potential difficulties by working out a mutually satisfactory parenting arrangement once [the child] begins school.”

(Emphasis added.) Also, it is undisputed that the father represented to the courts in Tennessee that he would move to Florence when the child began school, if not sooner.

After the four/four custody arrangement was established, the mother enrolled the child in a weekday day-care program at First Assembly Childcare and Development Center in Florence. Thereafter, the father exercised his custody rights so that the child was not in day care on the weekdays he had custody, though he did have to leave the child with relatives on occasion because of his work schedule; the father was self-employed as a photographer and also taught occasionally as an adjunct faculty member at a local college.

In the spring of 2006, the mother determined that she would like to enroll the child in a pre-K program in the fall of 2006 in order to prepare her for kindergarten. Although the parties had disputes concerning whether the father was properly involved in the initial decision to enroll the child in a pre-K program and as to which pre-K program should be used, they eventually agreed to enroll the child in the pre-K program at First Assembly. We note that at trial the father did not dispute that enrollment in the pre-K program at First Assembly was in the child’s best interest. Instead, he argued that he could adequately compensate for the time the child would miss from the pre-K program when she was in his custody, as he had when she was in the day-care program. In that regard, much of the testimony at trial concerned the nature of the pre-K program and the impact the four/four custody arrangement would have on the benefits the child might obtain from the program. See discussion infra. There was also testimony, however, concerning some of the negative impacts the four/four custody arrangement, in and of itself, was having on the child. For example, both the mother and the maternal grandmother testified that the child suffered anxiety at the custody exchanges with the father and that her anxiety had grown worse as she got older. In part, the mother testified:

“Q. What other, if any, changes have you seen in [the child]? And we are talking about leading up to your filing this, that made you realize there had been changes, that this plan needed to be revisited, in her demeanor, her actions, any, did you see any indications about how this was affecting her life or impacting her?
“A. On the fourth day, [the child], she’s like a totally different kid. She asked me why, and blamed me for having to carry her, I mean like I don’t want her. I’m afraid that she’s going to, I mean, she asked me why I’m sending her to daddy’s, do I not want her to stay there? She procrastinates when she gets home. My mom picks her up sometimes from day care and has her fed before we go back. And she runs from room to room, just wanting me to play with her, color. She says, ‘Carry me back tomorrow night. Daddy won’t care,’ anything just to prolong us getting there. Then at the exchanges, she cries and holds on to me. And not this past exchange but the one before that, we had gone in the store. She just balked on us, and she didn’t want to go. And I went around to the back to talk to her. Mark went around to the back to talk to her. Mark was even telling her, you know, they would go swimming, they would, you know, he would get her this and that. And then finally, she said, ‘Well, I gotta go to the bathroom.’ So we went in the bathroom. I pulled up to the store where we meet. Everything was okay. Mark bought her some candy. We walked out. And I thought, okay, everything is going to be okay. So then Mark gets her hand, you know, they were walking. And I’m starting to back up. And I look in my rearview mirror, and [the child’s] running back to the car, screaming and crying. So Mark runs after [the child], picks her up. And then I’m driving by, with her hands out like this for me to get her.
“Q. And these problems have been going on for several months leading up to you filing the petition. But they are getting even worse?
“A. Right.”

Furthermore, in regard to the pre-K program, Brenda Coleman, a teacher in the program at First Assembly, testified that the pre-K program involved a “more structured teaching” than the day-care program and that it was designed to prepare children for the kindergarten program in the school system. The pre-K program operated in a classroom setting with a curriculum to follow. Coleman testified:

“Q. And please just summarize the curriculum that you follow and how it’s structured or what’s provided.
“A. Okay. We teach the [A]BEKA Bible curriculum from Pensacola Bible College. It has the alphabet, the numbers, the readiness skills, crafts and things that they need, to use the fine motor skills, and to learn the things they need to get ready for kindergarten. And we have, in my classroom, we have five books that we teach from. And each emphasizes different things. We have a Bible story book also we do stress the importance of.
“Q. And the curriculum that’s set out here on Defendant’s Exhibit 8, it has what we have been calling loosely instructional time where you are talking about work books?
“A. Mm-hmm.
“Q. Are there other, times of the day that you feel the children are learning?
“A. I feel the children are learning all day, because everything we do is geared toward teaching them to follow directions and getting along with other children, and skills like that. And we have the sitdown classroom time, which is this part, part of this that you see is workbook time. That’s the sit down. But as you know, children learn all different ways than just to sit down. Writing time with their books is not the only time of the day that we are learning.
“Q. So not trying to, if I understand you correctly, are you saying that all day long, y’all are trying to focus on preparing for the things they need for school?
“A. Yes. We have a more structured [program] than just a day care. Structured, getting them ready, like I said, to handle when they do go to kindergarten.
“Q. Do you consider — well, first of all, let me ask you, how many days a week do /all teach in a pre-K structured environment?
“A. Five days.
“Q. So five days of teaching is offered?
“A. Yes.
“Q. Is it offered that a child can go part-time?
“A. Yes, it is. And in my classroom.
“Q. And what days would a child, if the child was going part-time, what days would a child be there?
“A. Normally, it’s Monday, Wednesday, and Friday. But sometimes we are flexible with that.
“Q. Okay. Do you have an opinion as to a child, the importance of attendance?
“A. Well, of course the more classroom time and teaching time you get, of course that’s beneficial. So if they are there five days, then they are going to get more than if they are there two or three days. That’s common sense.
“Q. Is there anything about this particular instruction method or workbook method that makes regular attendance even more important in your eyes, about how those workbooks work or anything?
“A. Well, they are all, they are correlated to work together. And something we’ll do maybe on a Monday, Tuesday would be just reemphasizing it in a different way, because repeating things is how children do learn. So naturally we are building all week.
“Q. So one day is building on the next day?
“A. Yes.
“Q. So do you consider regular attendance to be important?
“A. Yes.”

Although Coleman testified that, as a teacher, she could adapt to the child’s four/ four custody arrangement and that she would work with the father in coordinating the child’s schoolwork, she also stated:

“Q. And would you think that a parent could at home do as good of a job, or the same job that you can do with peer interaction in classroom preparedness, and follow the teacher’s instruction and classroom discipline, and those kind of things, as far as getting ready for real school kindergarten?
“A. Well, it wouldn’t be the same. Because I think having the peers there is part of the learning, how to get along with others,. and how to work well together.”

Likewise, Myra Carter, a licensed social worker who specialized in parenting and who attended church with the mother and the child, testified as follows:

“Q. ... I think you have previously testified about some acting out when she was younger—
“A. (Nods head affirmatively)
“Q. —after some extended visitation?
“A. Right.
“Q. Have you noticed any of that?
“A. She’s more clingy, I notice, when she comes back, with her mom, not wanting to drop her off to her room, and needs to stay out with the hall with me for a little while until I can sort of coax her back in. And she doesn’t normally do that. She likes her friends, and you know, those kind of things.
“Q. And as far as the current parenting plan, you are very familiar with their four day on, four day off?
“A. Right.
“Q. Based on your experience, do you have an opinion as to whether that, and based on what you have seen from [the child] and the actions you have seen, but further, based on your experience and your training and your knowledge, do you have an opinion as to whether that would be in [the child’s] best interest?
“A. If I were writing a behavior plan or a parenting plan in my capacity with family connections, no, I would never encourage four here, four there, for the simple reason that it makes it very difficult for both parents, but especially for the child. It’s hard for them to build or to be a part of something on a consistent basis. You know, and any time in a divorce situation, it’s all about the child and, you know, just making sure that they are comfortable and making sure that they understand and know that both parents need them to feel comfortable and to thrive. And I think that would be the goal, to see a child her age, we want to see her develop and grow.
“Q. Talking about developing, can you talk a little bit or explain a little bit the importance of a stable plan or stable environment? And I keep hearing and reading at different times about this continuity term, of the continuity of experience. Can you talk a little bit about that as it applies to development of a child?
“A. Well, I think consistency is very important, even for us as adults. I think consistently being and understanding, you know, this is her world here. She has two separate worlds, two separate different places. And so it’s really hard to implement something, or to grow and develop in two totally different worlds, like that.
“Q. And I guess the flip side of that is, to a certain extent, isn’t that always the reality we are faced with, with a divorce situation?
“A. It is. But usually there is at least a little — four here and four there is, you know, a little bit harder, I think. You know, I’ve not ever heard of that personally.
“Q. You think that’s the extreme?
“A. I think that’s very much the extreme.
“Q. As far as your opinion on that issue, do you have an opinion as to what type of plan might could work in a situation like this, where you have two good, both parents fit, good, loving, involved—
“A. Absolutely, uh-huh.
“Q. —that want to be involved, and want to participate? Do you have an opinion of what type of plan would be beneficial to [the child] and in her best interest?
“A. Pick one location and let her start developing and building a life, I think, would be very, very positive, because there is already enough negatives even in a great situation that she would work through. I just think that she could thrive in a situation where she feels like she could make friendships, get to know people, build on that. And I agree, I think both parents would want the best interest, you know, have the best interest of this child.
“Q. Okay. As far as encouraging involvement with the other parent, you fully support two parents being active and involved in a child’s life, don’t you?
“A. Oh, absolutely. Most definitely.
“Q. So is it your opinion that you just feel a primary residential designation, primary physical custodian is in the best interest of a child so that a child can participate and have stability, and develop her own life experience?
“A. That’s exactly right. She has to come back in and start new every time she comes back there or comes back here. I mean it’s a new situation for her.
“Q. Okay. And there’s been a lot of talk, were you familiar with [the child’s] starting pre-K?
“A. Yes.
“Q-But as far as stability and having those experiences, you would say that would apply to a pre-K setting as well as church or extracurricular—
“A. Definitely.
“Q. When you testified ... in the [Tennessee Chancery Court] proceeding, did you express concerns that would be relevant if there was a lack of stability in a child’s life?
“A. Yes.
“Q. And based on what you have seen in [the child’s] demeanor, and in this current situation with four on and four off, have your concerns been alleviated, or have they been confirmed?
“A. No. I still think there needs to be a consistent plan, one place, for her to be able to thrive and to grow.
“Q. Okay. And have, again, have you seen some of those concerns?
“A. Again, yeah.
“Q. Okay. And those concerns have not gone away?
“A. Correct.
“Q. Do you expect the negative impact that you talked about with friends going on and her not being able to be involved, and activities and those types of things, would you expect those to get better or worse as she gets a little older?
“A. Definitely. It will do nothing but get worse.”

Furthermore, Robert D. Young, professor of early childhood education at the University of North Alabama, testified:

“Q. What do you consider to be some of the most important factors as far as a well-adapted, appropriately developed, important factors in the child development, to achieve an appropriate child development in a child—
“A. One of the most important factors in a young child’s life is what the literature will call continuity of experience. And that would mean in all areas that would fall under the areas of the realms of cognitive, physical, social, and emotional. So that would be learning activities, scheduling, play time, individual group, how the parents and caregivers interact with the child, discipline, and so forth. The more consistent it is, the better it is for the child’s overall development. It has an impact on things such as the child’s ability to trust, to take initiative in learning experiences, to get to the point where they want to accomplish tasks. They take pride, and, through that, develop self-esteem through their accomplishments and so forth. If the continuity is broken every so often, it’s not a major detriment. If it’s a continual upset in the child’s experiences, it can cause, well, the opposite of things I just mentioned, a lack of trust, a lack of willingness to take initiative. It can develop feelings of guilt, shame, doubt, in one’s own abilities and so forth. A child will, with the continuity of experience — most children are natural risk takers in their learning. They are very interested in figuring out the world. When there is less consistency in the child’s life, it has a negative effect on their willingness to take risks in learning situations, so that they become more inhibited, more cautious. And that would inhibit their learning as well. A child, during these years — there is another term called mastery through repetition. A child needs a great deal of time to go over and over the same activity, the same experience. That’s why you will have a young child ask the parent or caregiver to read the same book over and over again. They instinctively have that desire for repetition. They have to; it takes them longer to process their learning than it does us, at the adult level. So they need that extended period of times for repetition. And going back to the continuity of experiences, with the continuity the opportunities for adequate repetition helps the child master the learning experiences. And that’s not just the cognitive learning, but it’s social, emotion, and physical as well.
“Q. As far as that continuity of experience, would you in your opinion, have a concern that that may be broken if a child didn’t attend a pre-K program regularly?
“A. If they were, if their attendance was haphazard?
“Q. Yes.
“A. Oh, absolutely. It would have a detriment. Could be significant.
“Q. What if their attendance at a church with their peer group in their church child’s group, was that same way?
“A. Well, I was going to say children. But all of us have a desire to feel as if we belong with a group, so forth. If a child’s experiences with the group and attendance with the groups, the times they meet and so forth, is broken, is interrupted for whatever reason, the child might not develop that sense of belonging. And through that, a sense of love, being able to receive it and give it, and so forth, with their, whatever group it would be. So yes, I would.
“Q. Do you have any opinion as to how a custody plan of a four-day, or parenting plan with four days with one parent in Florence, followed by four days with one parent in Decatur, may affect a child adversely or benefit a child, or have any impact on this continuity that you are talking about?
“A. I would not see a benefit to the child. My feelings when I heard about that was, the decision was not made on the best interest of the child. It was made, I won’t try to guess why it was made. But I cannot see it as being in the best interest of the child for any way.”

The foregoing testimony would support a conclusion by the circuit court that the four/four custody arrangement had become problematic for the child and that the problems were only going to get worse when the child began the pre-K program.

In addition, we note that there was some consideration given at the prior custody proceeding in Tennessee to the father’s relocating from Decatur to Florence when the child began “school.” Though the “school” under consideration at the time apparently was kindergarten, the parties agreed to enroll the child in the pre-K program. The Tennessee Court of Appeals noted that there might be problems with the four/four custody arrangement when the child started school.

Also, in regard to the father’s moving to Florence, there was testimony that the father committed to move in 2004 and again in 2005 and that he committed to begin moving his business to Florence as well; the testimony would support the conclusion that the father could easily have moved his photography business to Florence. The father’s most recent commitment was that he would move to Florence in the summer of 2006. It is undisputed, however, that the father did not follow through on his commitments to relocate to Florence. Instead, he threatened the mother that he would attempt to obtain primary physical custody instead of moving, even before the mother filed her petition in the Lauderdale Circuit Court seeking primary physical custody. Based on the tenor of the testimony concerning the father’s commitments to move, other testimony, and the fact that the father filed a counterpetition seeking sole custody of the child shortly before the final hearing in the present case, the circuit court could have concluded that the father had no intention of moving or that he had failed to act in good faith regarding moving and that, in that regard, he had placed his own self-interest above the child’s best interest.

The circuit court also could have concluded that, despite the father’s testimony that he believed such things negatively affected the child, the father had instigated contentious conversations with the mother in the child’s presence. Although the father attempted to blame the mother for these conversations, the circuit court could have concluded that the father was at fault. Likewise, the circuit court could have concluded generally that the father was being untruthful and evasive in his testimony and that he was attempting to mislead the court in an effort to obtain sole custody of the child.

In any event, based on the foregoing, and other testimonial and documentary evidence (including the testimony of the maternal grandmother), the circuit court implicitly concluded, after an ore tenus hearing, that a material change in circumstances had occurred since the entry of the September 2003 order and that it was in the best interest of the child for the mother to have primary physical custody. As discussed above, the task of an appellate court is not to reweigh the evidence, but to determine if there is sufficient evidence to support the trial court’s ruling. Based on our review of the record, we must conclude that there was sufficient evidence in this regard and, therefore, that the Court of Civil Appeals erred in reversing the judgment of the circuit court.

2. Application of Watters

In the present case, the Court of Civil Appeals relied on Watters for the proposition that the mother bore the “burden of showing that a material change of circumstances had occurred that affected the child’s welfare since the last custody order. See, e.g., Watters v. Watters, 918 So.2d 913, 916-17 (Ala.Civ.App.2005).” Davis, 47 So.3d at 800. It went on, however, to state:

“The evidence shows that the only change that has occurred has been the natural progression of the child to prekindergarten school. However, the mother has not demonstrated how this change, in the context of the joint-custody arrangement, has affected the child’s welfare or best interest. The evidence shows that the child could attend pre-Idndergarten part-time and that the father could instruct the child on the days she did not attend. The child thrived in a similar arrangement in day care. The mother presented no evidence to indicate that the child would not continue to thrive while in pre-kindergarten under the same arrangement. The only other relevant evidence the mother presented showed that the child expressed anxiety at exchanges and that she would miss school, church, and extracurricular activities if the current custody arrangement was maintained. However, as the father points out, even under the physical-custody arrangement approved by the Alabama trial court, the child would still experience exchanges and would still miss activities.”

47 So.3d at 800-01.

We first note that the record before us is in conflict with the Court of Civil Appeals’ conclusion that “the mother presented no evidence to indicate that the child would not continue to thrive while in prekindergarten under the same [four/four custody] arrangement.” 47 So.3d at 801. The testimony presented, including that of the mother, Young, Carter, and Coleman, along with the inferences the circuit court was free to draw from the testimony, was more than adequate to call into question whether the child would “thrive” in the pre-K program if the four/four custody arrangement continued.

The Court of Civil Appeals also relied on the fact that the “only change” at issue involved what it termed a “natural progression of the child to pre-kindergarten school.” 47 So.3d at 800. To the extent that this statement implies that a “natural progression” cannot be a material change in circumstances, it is at odds with the practical realities of life. By definition, a “progression” reflects a change from some prior state, in this case from the prior state of facts on which the Tennessee trial court based its judgment. The issue is whether the change is a material one, so far as the custody of the child is concerned, whether it is natural or not. To say that a change of custody cannot be based on the change in the child’s needs simply because the change itself reflects a “natural progression” is to ignore the best interests of the child in favor of a more rigid, court-manufactured view, particularly, where, as in the present case, there is no indication that the “natural progression” was considered as part of the basis for the prior judgment.

D. Conclusion

Based on the foregoing, the decision of the Court of Civil Appeals is due to be and is hereby reversed, and the cause is remanded to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, STUART, SMITH, and SHAW, JJ., concur.

MURDOCK, J., concurs specially.

WOODALL, BOLIN, and PARKER, JJ., concur in the result.

MURDOCK, Justice

(concurring specially).

I concur in the main opinion. I write separately to comment on the citation by the Court of Civil Appeals to Watters v. Watters, 918 So.2d 913 (Ala.Civ.App.2005), for the proposition that the mother had a “burden of showing that a material change of circumstances had occurred that affected, the child’s welfare since the last custody order” and of “demonstrat[ing] how this change ... has affected the child’s welfare or best interest.” Davis v. Blackstock, 47 So.3d 796, 800 (Ala.Civ.App.2007). See Watters, 918 So.2d at 916 (“the party seeking the modification of custody must prove ‘a material change of circumstances of the parties since the prior [judgment], which change of circumstances is such as to affect the welfare and best interest of the child or children involved’ ” (quoting Ponder v. Ponder, 50 Ala.App. 27, 30, 276 So.2d 613, 615 (Civ.App.1973))).

I find these articulations of the standard for modifying custody, including the above-cited articulation provided by Watters itself, to be potentially confusing and misleading. First, I note that it is not necessary to show a change of circumstances that has adversely affected the child’s interests. As the opinion in Watters, itself, notes:

“Although some older custody cases indicated that an adverse impact on a child must be shown before a parent would be entitled to a change of custody, see, e.g., Lewis v. Douglass, 440 So.2d 1073 (Ala.Civ.App.1983), overruled by Ex parte McLendon, 455 So.2d [863,] 866 [ (Ala.1984) ], and Simpson v. Gibson, 420 So.2d 782 (Ala.Civ.App.1982), overruled by Ex parte McLendon, 455 So.2d at 866, our supreme court has, on more than one occasion, clearly stated that custody modifications do not require proof of a material change of circumstances that has adversely or detrimentally impacted the child. See Ex parte Murphy, 670 So.2d 51, 53 (Ala.1995); Ex parte McLendon, 455 So.2d at 866; and Ford v. Ford, 293 Ala. 743, 744, 310 So.2d 234, 235 (1975) (correcting a statement of the law from an opinion of the Court of Civil Appeals regarding custody modifications by omitting the word ‘adversely’). Instead, the party seeking the modification of custody must prove ‘a material change of circumstances of the parties since the prior [judgment], which change of circumstances is such as to affect the welfare and best interest of the child or children involved.’ Ponder v. Ponder, 50 Ala.App. 27, 30, 276 So.2d 613, 615 (Civ.App.1973).”

918 So.2d at 916.

More generally, the standard as articulated in the opinion of the Court of Civil Appeals and in Watters suggests that the change of circumstances, itself, must have had an effect on the child’s “welfare and best interest.” I believe a clearer way to express the operative standard is to say simply that the party seeking the custody modification must show (1) a material change in circumstances since the prior judgment and (2) that a change of custody in response to that change in circumstances will be in the child’s best interest.

      . The Court of Civil Appeals concluded that the Lauderdale Circuit Court’s assumption of jurisdiction was consistent with the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, Ala.Code 1975, § 30-3B-101 et seq. This conclusion appears to be correct.

      . At trial, the mother clarified that the child would have been required to attend every day in the pre-K program in which the mother had initially considered enrolling the child. By the time of trial, however, the parties had agreed for the child to attend a pre-K program that did not require daily attendance as a condition to enrollment.

      . The circuit court's "standard visitation” included visitation every other weekend, four weeks during the summer (two weeks in June and two weeks in July), several days during spring break and fall break from school, and various holidays, and other visitation to which the parties might agree.

      . The mother remarried at some time after the custody proceedings in Tennessee. She did not suggest at trial in the present case, however, that her remarriage was one of the material changes of circumstance that might support a change of custody.

      . The parties apparently had considerable difficulty cooperating, each blaming the other for those problems. The circuit court obviously may have resolved that issue in favor of the mother. In any event, one of the factors relevant to a joint-custody award is "[t]he past and present ability of the parents to cooperate with each other and make decisions jointly." Ala.Code 1975, § 30-3-152. Where such cooperation is lacking and the child’s welfare is implicated, a joint-custody award may not be, or may no longer be, appropriate.

      . The father argued to the Court of Civil Appeals that the circuit court erred as to the admissibility of certain testimony from Robert D. Young and Myra Carter, see discussion infra, and to the admission of office notes from a counselor who had counseled the parties pursuant to an order of the Tennessee Chancery Court. We have carefully reviewed the record, including the father’s objections where an objection was actually made, and we cannot conclude that the circuit court improperly considered any of the evidence that was presented at trial.

      . We recognize that the child will still experience changes of custody under the primary-custody/visitation arrangement ordered by the circuit court. Based on the evidence seen and heard, however, the circuit court could have concluded that a change to primary physical custody being with the mother, with visitation as ordered for the father, would help alleviate, at least to some degree, problems that had developed with the four/four custody arrangement.

      . As discussed in Headrick v. Headrick, 916 So.2d 610, 615 (Ala.Civ.App.2005), alternating-custody arrangements can be disruptive to a child if the parents do not live in the same community. See also Ala.Code 1975, § 30-3-152 (factors relevant to a joint-custody award include "[t]he geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody”); see also Poe v. Capps, 599 So.2d 623, 624-25 (Ala.Civ.App.1992) (concluding that an alternating annual-custody arrangement "was workable and satisfactory with the parents and the child until the child became old enough to enter school.... The father's petition to modify that unique custody arrangement appears to be a step towards providing academic stability for the child by having the issue of custody finally adjudicated”).

      . Indeed, the converse is true here. As noted, the Tennessee Court of Appeals, in affirming the judgment of the trial court that fashioned the preexisting four/four custody arrangement, stated in its opinion:

        “Shuttling [the child] back and forth every four days will no longer be in her best interests when she begins school. [The mother] insists that these potential difficulties provide a sufficient basis to vacate the revised residential schedule and to designate her as the primary residential parent. We respectfully disagree. Courts must base their decisions on the evidence of what has already happened, not on speculation about what might happen in the future."

      (Emphasis added.)


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Mark DAVIS v. Tonya BLACKSTOCK.
    2060017.
    Court of Civil Appeals of Alabama.
    April 2, 2010.
    Heath F. Trousdale, Florence, for appellant.
    Melinda Morgan Austin of Holt, Mussle-man, Holt & Morgan, Florence, for appel-lee.
   After Remand from the Alabama Supreme Court

MOORE, Judge.

On June 29, 2007, this court reversed that part of a judgment entered by the Lauderdale Circuit Court (“the trial court”) modifying a prior judgment entered by a Tennessee court, which had awarded Mark Davis (“the father”) and Tonya Blackstock (“the mother”) joint custody of their minor child, by awarding the mother primary physical custody of the child. See Davis v. Blackstock, 47 So.3d 796 (Ala.Civ.App.2007). Although the issue of child support was raised by the father on appeal, we noted in our prior opinion that our reversal of the judgment with regard to custody would necessarily impact the child-support award, and we remanded the cause for the trial court to reconsider its child-support award. 47 So.3d at 801.

This court’s prior judgment has now been reversed by the Supreme Court of Alabama. Ex parte Blackstock, 47 So.3d 801 (Ala.2009). In compliance with the supreme court’s opinion, the trial court’s judgment relating to the modification of custody is affirmed. Therefore, we must now address the issue of child support.

The father argues that the trial court’s child-support award to the mother of $469 per month was in error. The trial court attached a Form CS-42 Child-Support Guidelines statement, see Rule 32, Ala. R. Jud. Admin., to its September 1, 2006, judgment. Based on the parties’ incomes, the trial court determined the basic child-support obligation to be $540. The trial court then added child-care costs of $364, resulting in a $904 total child-support obligation. The father’s percentage share of the parties’ income is 48.13%, and the mother’s percentage share is 51.87%. Therefore, the mother’s share of the $904 total child-support obligation is $469, and the father’s share is $435. It appears that the trial court inadvertently ordered the father to pay the amount of child support that, according to its calculations, the mother would have been obligated to pay had the father been awarded primary physical custody of the child. Thus, we conclude that the trial court’s award of child support is in error.

We also note that, although the trial court ordered that “the child shall have medical insurance coverage from her mother’s husband through his place of employment, if it is available,” the trial court failed to include the health-insurance costs in the total child-support obligation. When this action was filed, Rule 32(B)(7), Ala. R. Jud. Admin., provided, in part:

“(a) The actual cost of a premium to provide health insurance benefits for the children shall be added to the ‘basic child support obligation’ and shall be divided between the parents in proportion to their adjusted gross income in the percentages indicated on the Child Support Guidelines form (Form CS-42).
“(b) The amount to be added to the ‘basic child support obligation’ shall be the actual amount of the total insurance premium for family/dependent coverage, regardless of whether all children covered are in the same family.”

See also Balfour v. Balfour, 660 So.2d 1015, 1017 (Ala.Civ.App.1995). The trial court did not state any reasons for deviating from the child-support guidelines. “A trial court’s failure to apply the guidelines or to explain why the deviation occurred, requires reversal.” Spillers v. Spillers, 707 So.2d 256, 258 (Ala.Civ.App.1997).

Based on the foregoing, the trial court’s judgment pertaining to custody is affirmed. That portion of the trial court’s judgment pertaining to child support is reversed, and the cause is remanded for the trial court to recalculate the father’s child-support obligation in accordance with Rule 32 and this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Rule 32 was amended effective January 1, 2009. However, because this action was filed before January 1, 2009, the amended rule does not apply in this case. See Rule 32, Preface Relating to Scope.


author: THOMAS, Judge.

text:
    Kathleen Ann KLAESER v. Osborne MILTON, Jr.
    2080722.
    Court of Civil Appeals of Alabama.
    Jan. 8, 2010.
    Rehearing Denied March 19, 2010.
    Certiorari Denied May 7, 2010 Alabama Supreme Court 1090871.

      Robert S. Presto, Huntsville, for appellant.
    Bill G. Hall, Huntsville, for appellee.
   THOMAS, Judge.

Kathleen Ann Klaeser appeals from the Madison Circuit Court’s denial of her motion to set aside a default judgment in favor of Osborne Milton, Jr. We affirm.

Facts and Procedural History

Milton and Klaeser were divorced in 2000. The divorce judgment, in part, awarded Klaeser primary physical custody of the parties’ younger child (“the child”). On November 28, 2006, Milton petitioned the trial court to modify custody by awarding Milton primary physical custody of the child. The process server attempted to serve Klaeser at her home; however, Klaeser was not present. The process server left the service with the child, who was then 15 years old. Klaeser did not receive the papers from the child until several days later. On September 11, 2007, Milton filed an amended complaint, adding a claim requesting that the trial court modify the postminority-educational-sup-port provision in the parties’ divorce judgment.

Klaeser did not answer Milton’s petition or file any other responsive pleading. On November 2, 2007, Milton applied to the clerk for entry of a default judgment against Klaeser. Milton included an affidavit with his application for default; however, he failed to state in his affidavit whether Klaeser was in active military service. Klaeser is a colonel in the United States Army Reserve, and, on May 17, 2007, Klaeser was placed in active military service. It is unclear whether Milton knew that Klaeser had been placed in active military service. The trial court entered a default judgment against Klaeser on February 29, 2008. In May 2008, Klaeser mailed a letter to the trial court alleging that she was in active military service and therefore covered by the Ser-vicemembers Civil Relief Act of 2003, codified at 50 App. U.S.C. § 501 et seq. (“the Act”). In November 2008, Klaeser mailed a letter to the trial court contesting the amount of child support awarded to Milton in the default judgment. The court held a hearing on Klaeser’s “contest” of the judgment and, on January 5, 2009, denied her request for relief. Klaeser was represented by counsel at the hearing.

On January 19, 2009, Klaeser moved the trial court pursuant to Rule 60(b)(4), Ala. R. Civ. P., and the Act to set aside the default judgment. Klaeser alleged in her motion that the default judgment was void for insufficiency of service of process and that the default judgment had been entered in contravention of the provisions of the Act. The trial court held a hearing and, in a detailed written order, denied Klaeser’s motion. Klaeser timely appealed to this court.

Issues

Klaeser raises two issues in her appeal: (1) whether the trial court erred when it determined that Klaeser had been properly served; and (2) whether the trial court erred when it determined that Klaeser had not demonstrated that she was entitled to have the default judgment set aside pursuant to the provisions of the Act.

Standard of Review

We apply a de novo standard of review to a trial court’s ruling on a Rule 60(b)(4) motion.

“ ‘ “When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.” ’ ”

Russell Coal Co. v. Smith, 845 So.2d 781, 783 (Ala.2002)(quoting Northbrook Indem. Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala.2000) (quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991))).

The Act “places upon the trial judge a wide discretion; and, in determining whether a service [member] is entitled to relief, each case must stand upon its own merits.” Brown Serv. Ins. Co. v. King, 247 Ala. 311, 315, 24 So.2d 219, 222 (1945). The trial court’s denial of Klaeser’s motion to set aside the default judgment because it was entered in contravention of the provisions of the Act will be reversed only if the trial court exceeded that discretion. See, e.g., Riley v. State ex rel. White, 563 So.2d 1039, 1040 (Ala.Civ.App.1990).

Analysis

I.

Klaeser argues that the trial court erred when it denied her Rule 60(b)(4) motion because, she says, the child was not of suitable age and discretion to accept substituted service of process for Klaeser. Thus, Klaeser argues that service of process was insufficient, rendering the judgment void for lack of personal jurisdiction.

A defense alleging a lack of personal jurisdiction because of insufficiency of service of process, however, can be waived if the defendant submits himself or herself to the jurisdiction of the trial court. See Rule 12(h)(1), Ala. R. Civ. P. (providing that a defense of insufficiency of service of process is waived if it is not included in a Rule 12 motion, a responsive pleading, or an amended responsive pleading). In this case, Klaeser did not file any responsive pleadings to Milton’s petition before the trial court entered its default judgment. However, after the default judgment, Klaeser filed a “contest” challenging the amount of income withholding ordered by that judgment. The trial court held a hearing on her “contest,” at which Klaeser’s attorney appeared. Klaeser did not raise the issue whether process was insufficient in her letter contesting the amount of the income withholding, nor did her attorney raise the issue when he appeared at the hearing.

In Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 58 (Ala.2003), the Alabama Supreme Court quoted approvingly from Lonning v. Lonning, 199 N.W.2d 60, 62 (Iowa 1972), for the proposition that:

“ ‘The rules which govern our consideration of this case are well established. The filing of a pleading is a general appearance. Rule 65(c), Rules of Civil Procedure. Jurisdiction of the person in a civil case may be acquired by service of notice in the manner and form prescribed by law, or by defendant’s general appearance. Boyer v. Iowa High School Athletic Association, 258 Iowa 285, 138 N.W.2d 914 (1965); Emery Transportation Company v. Baker, 257 Iowa 1260, 136 N.W.2d 529 (1965); Baker v. Baker, [248 Iowa 361, 81 N.W.2d 1 (1957)]. A general appearance is a waiver of notice and if a party appears in person or by attorney he submits himself to the jurisdiction of the court. Humboldt Livestock Auction, Inc. v. B & H Cattle Co., 261 Iowa 419, 155 N.W.2d 478 (1967); O’Connor v. Youngblade, 250 Iowa 808, 96 N.W.2d 457 (1959). He may not thereafter avoid that jurisdiction by special appearance. Gardner v. Beck, 195 Iowa 62, 189 N.W. 962 (1922); 5 Am.Jur.2d, Appearance § 16, pp. 491-92; 6 C.J.S., Appearances § 24, p. 67.’ ”

This statement is in accord with earlier Alabama cases that hold that a defendant waives the defense of improper service of process if that defendant does not raise the issue in his or her first appearance following the entry of a default judgment. In Pridgen v. Head, 282 Ala. 193, 198, 210 So.2d 426, 430 (1968), the Alabama Supreme Court stated:

“In Aetna Ins. Co. v. Earnest, 215 Ala. 557, 112 So. 145 [ (1927) ], [the Alabama Supreme Court] quoted approvingly from 4 Corpus Juris, Appearances, § 64, p. 1364, as follows:
“ ‘Where a judgmeht has been rendered by the court without jurisdiction of the person, a general appearance after such judgment waives all objection to the jurisdiction of the court over the person. Thus a general appearance by defendant after final judgment waives any and all defects and irregularities in the service of process and return, just as fully as it does where such appearance is entered before final judgment.’
“In the Aetna Ins. Co. case, supra, [the Alabama Supreme Court] pointed out that in the same text (§ 65, p. 1365) many cases were cited to the proposition that: ‘As to the immediate parties to the action, a general appearance validates a judgment that was theretofore absolutely void for want of jurisdiction.’ ”

In this case, Klaeser appeared in the action when she contested the merits of the default judgment. By appearing in the action, Klaeser submitted herself to the jurisdiction of the trial court. Klaeser should have brought any challenge to the trial court’s personal jurisdiction over her at that time. Because Klaeser failed to raise the defense of insufficiency of service of process in her first appearance following the entry of the default judgment, she waived that defense. Therefore, the trial court’s denial of Klaeser’s Rule 60(b)(4) motion is due to be affirmed.

II.

Klaeser next argues that the trial court erred when it denied her request to set aside the default judgment because, she argues, the trial court entered its default judgment in contravention of the provisions of the Act. Section 521(b)(1) of the Act provides:

“In any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff tó file with the court an affidavit—
“(A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or
“(B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.”

The submission of the affidavit is a prerequisite to the entry of a default judgment. Milton does not dispute that he did not submit such an affidavit at the time he applied for a default judgment. Thus, Klaeser is correct that the provisions in the Act were not followed. However, that error does not mandate reversal. Default judgments obtained in the absence of the required affidavit are merely voidable, not void. Krumme v. Krumme, 6 Kan.App.2d 939, 943, 636 P.2d 814, 815 (1981); Davidson v. General Fin. Corp., 295 F.Supp. 878, 881 (N.D.Ga.1968); Rentfrow v. Wilson, 213 A.2d 295, 296 (D.C.1965); Thompson v. Lowman, 108 Ohio App. 453, 456, 155 N.E.2d 258, 261 (1958); and People v. Vogel, 46 Cal.2d 798, 299 P.2d 850 (1956).

A servicemember who has had a default judgment entered against him or her may seek to set aside the default judgment by complying with the requirements of 50 App. U.S.C. § 521(g). First, the servicemember must file an application under the Act during the servicemember’s military service or within 90 days after the servicemember’s termination or release from military service. In this case, Klaeser filed her application two days before she was released from active duty. Thus, her motion was timely. Next, the servicemem-ber must show that he or she was “materially affected by reason of that military service in making a defense to the action” and that he or she has a “meritorious or legal defense to the action or some part of it.” 50 App. U.S.C. §§ 521(g)(1)(A) and (B). Klaeser alleged in her affidavit that her military service

“materially affected [her] ability to formulate and present a defense herein, since it interfered with [her] opportunity to consult with counsel of [her] choosing, to select and retain an attorney whom [she] deemed to be capable of defending [her] interests within the foregoing matter, to actively communicate and consult with him or her in the planning of [her] case, and to appear in court in an effort to present [her] defenses and counterclaims herein.”

However, Klaeser does not explain why she did not take any action during the five months between the date she was notified of the action and the date she entered active military service.

“The purpose of the Soldiers’ and Sailors’ Civil Relief Act was to protect persons in military service from having default judgments entered without their knowledge, not to prevent a judgment by default from being entered against such person, where that person was fully informed of the pendency of the action and had the time and opportunity to appear and defend himself or otherwise protect his rights.”

Wilson v. Butler, 584 So.2d 414, 417 (Miss.1991) (citing La Mar v. La Mar, 19 Ariz.App. 128, 130-81, 505 P.2d 566, 568-69 (1973), and Burgess v. Burgess, 234 N.Y.S.2d 87, 89 (1962)). This statement is in accord with Alabama caselaw requiring a defendant who seeks to set aside a default judgment pursuant to Rule 60(b), Ala. R. Civ. P., to show that he or she adequately protected his or her rights. See DaLee v. Crosby Lumber Co., 561 So.2d 1086, 1091 (Ala.1990) (“ ‘It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business, his motion to set aside a judgment for default should be denied.’ ” (quoting McDavid v. United Mercantile Agencies, Inc., 248 Ala. 297, 301, 27 So.2d 499, 503 (1946))). Klaeser had over five months from the time she learned of the action until she was placed in active military service. There is nothing in the record indicating that Klaeser undertook any action during that time to retain counsel or to otherwise protect her rights. Consequently, Klaeser has not demonstrated that her military service materially affected her ability to defend the action.

Conclusion

Because Klaeser waived her insufficiency-of-service-of-process argument, and because Klaeser has not demonstrated that the trial court exceeded its discretion when it denied her motion to set aside the judgment because it was entered in contravention of the provisions of the Act, the trial court’s judgment is affirmed.

AFFIRMED.

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

      . Klaeser alleges that the child was 15 years old; Milton alleges that the child was actually 16 years old.

      . It is unclear from the record whether Klaeser did not return home for several days or whether the child simply neglected to inform Klaeser of the papers left by the process server.

      . Rule 4(c)(1), Ala. R. Civ. P., provides, in pertinent part, that service of process on an individual, other than a minor or an incompetent person, shall be made "by serving the individual or by leaving a copy of the summons and the complaint at the individual’s dwelling house or usual place of adobe with some person of suitable age and discretion then residing therein....”

      4. The Soldiers’ and Sailors' Civil Relief Act of 1940 was the forerunner to the Servicemem-bers Civil Relief Act of 2003. The relevant portions of the two acts are substantively similar.


author: MOORE, Judge. BRYAN, Judge,

text:
    Ex parte STATE DEPARTMENT OF HUMAN RESOURCES. (In re The Matter of R.H.J. and In re The Matter of S.H.).
    2081197.
    Court of Civil Appeals of Alabama.
    March 12, 2010.
    Certiorari Denied May 7, 2010 Alabama Supreme Court 1090864.

      Sharon E. Ficquette, chief legal counsel, and Jennifer M. Bush, legal counsel, Department of Human Resources.
    J. Clay Benson, Jr., of Esco & Benson, LLC, Montgomery, guardian ad litem.
    Joshua B. James, Montgomery, for C.H.
   MOORE, Judge.

The State Department of Human Resources (“DHR”) petitions this court for a writ of mandamus directing Judge Patricia Warner of the Montgomery Juvenile Court (“the juvenile court”) to vacate those portions of an August 17, 2009, judgment in which the juvenile court ordered DHR to pay certain funds, collected by DHR from R.L.H. (“the father”) as a child-support arrearage and interest, to C.H., the legal custodian of R.H.J. and S.H. (“the children”). As grounds for the requested writ, DHR asserts that the juvenile court lacked subject-matter jurisdiction to collaterally attack a May 2005 final judgment entered in favor of DHR and lacked subject-matter jurisdiction to order the State treasury to issue funds to an individual. Because we grant the petition and issue the writ on the first ground, we need not address the second ground.

Background

In May 2005, DHR obtained a judgment against the father in case number CS-01-576 in the Montgomery Circuit Court, Child Support Division. On May 18, 2005, a juvenile-court referee evidently determined that DHR had proven its right to be reimbursed for benefits DHR had paid on behalf of the children, to whom the father owed a duty of support. The documents filed along with the petition for the writ of mandamus indicate that on May 19, 2005, Judge Anita Kelly, a Montgomery circuit-court judge, ratified and confirmed the referee’s order, thereby requiring the father to pay DHR $11,347.71, along with accrued interest of $2,407.10. The clerk of the circuit court stamped the judgment “received” on that same date, indicating that it had been properly filed with the clerk’s office.

In May 2008, the children became the subject of separate dependency actions in the juvenile court (case numbers JU-08-12.01 and JU-08-13.01). After determining that the children were dependent, the juvenile court awarded custody of the children to C.H., their aunt. At that time, DHR was still collecting on the May 2005 judgment against the father. As part of its collection efforts, on March 10, 2008, DHR had intercepted $6,178 payable to the father, allocating $4,760.77 to the judgment and the remainder to a separate judgment relating to another child-support case involving the father. When the juvenile court awarded custody of the children to C.H., the juvenile court entered the following handwritten notation on the case-action-summary sheets in both juvenile files: “Tax stimulus monies for both children to be paid to [C.H.] by father. Review set for 9/23/08 @ 10 AM. (See [child-support] cases to determine where father’s tax intercept is.) PDW.”

On July 14, 2008, the State again intercepted $1,028 payable to the father, allocating $775 of that amount to the May 2005 judgment. On August 19, 2008, the juvenile court entered a handwritten notation on the case-action-summary sheets in both juvenile cases: “GAL to review [child-support] records to determine whether there is an order of support which can be redirected to custodian. Support issues to be reviewed on 9/23/08 @ 10 AM. PDW.”

In November 2008, the juvenile court consolidated the pending juvenile cases with case number CS-01-576, and it set all pending issues for a hearing. After a hearing, the juvenile court entered a judgment on August 17, 2009. In that judgment, the juvenile court stated as follows:

“THIS MATTER came before the Court for final hearing in the above styled cases. On January 18, 2005, Referee Heibel wrote in the case action summary the following finding: ‘the Mother was deceased as of January 5, 2005 ... credit given to terminate CCS ...’ Two minor children remain alive and the father is alive and was still married to mother at time of her death. Apparently, the parties were separated and the father was paying $150 per month in child support at the time of the mother’s death. After the Mother’s death, the Father had custody of the children. No evidence of affirmation of Referee’s recommendation by a circuit Judge is contained in the record.
“The child support record does not reflect evidence of any amounts for benefits paid by the Department of Human Resources (hereinafter, DHR) to the Mother prior to her death were presented and substantiated in the record [sic]. However, DHR has continued to collect $150 per month from the Father and intercepted tax refunds and stimulus checks and retained same. No monies have been paid to the custodian, [C.H.], for the children by DHR after custody was vested in her in May, 2008. The Montgomery County Department of Human Resources simply collected child support money from the Father and wrongfully retained same. Likewise, the Montgomery County DHR collected child support money from the Father after the custody of the children was vested in [C.H.] and kept all funds for its own purposes.
“The Father did not receive benefits from DHR. The deceased Mother received benefits- in some unproven amount, making the deceased Mother in privity of contract with DHR for any obligation for repayment to DHR. The Father has no obligation to repay DHR for any amount of benefits which it may have extended to her. The Father’s obligation does not change because of the Mother’s death. The Father’s only obligation is to pay child support pursuant to Rule 32, [Ala. R. Jud. Admin.]. Likewise, custodian, [C.H.], has no obligation to pay DHR for benefits in some unspecified amount which DHR supposedly paid to the deceased mother.
“On January 3, 2008, the maternal aunt, [C.H.], filed for custody in the Juvenile Court Montgomery County. Thereafter, all matters, including child support matters, were heard by a circuit judge. There was no activity in the child support case which was consolidated into the Montgomery County Juvenile Court case. There was some attempted activity after the Mother’s death, but the referee’s recommendation was never affirmed by a circuit judge nor was said affirmation entered into the record. On May 15, 2008, DHR filed a home evaluation and report with the Court which recommended that [C.H.] be awarded custody of her niece and nephew, [R.H.J. and S.H.].
“After a hearing on May 27, 2008, the Court vested custody in [C.HJ. In that same entry/Order in the case action summary, the Court specifically stated:
“ ‘... Tax Stimulus monies for both children to be paid to Petitioner [C.H.] by the father. Review set for 9/28/08. (See [child-support] cases to determine where father’s tax intercept is.) PDW
“Monies were paid to [C.H.] as of the last hearing on April 8, 2009.
“On March 3, 2009, State’s Exhibit 2 evidences that DHR has taken $9,902 from the Father and paid nothing for the children. State’s Exhibit 2 shows that after [C.HJ’s petition for custody was filed, DHR intercepted $6,178.00 from Father on March 10, 2008, at which time the children were still in the Father’s care.
“In violation of this Court’s May 27, 2008, Order, that tax stimulus monies be paid to [C.H.] by the Father, DHR intercepted $1,023 in stimulus monies on July 14, 2008. DHR again on September 3, 2008 and November 13, 2008 violated this Court’s Order by receiving child support monies and under child support Orders refusing to forward same for the support of the children.
“On September 10, 2008, DHR was Ordered to appear on April 8, 2009, and prove all amounts, if any, in benefits paid to the Mother which would justify DHR’s continued taking of money from the living parent but refusing to pay out same for support of the children. No evidence was presented. In reviewing the child support cases which were consolidated into the Juvenile cases, it is clear that person(s) have ‘whited’ out the last entry entered by the undersigned judge leaving the last child support entry entered by the Referee on January 18, 2005 and no affirmation by a Circuit Judge.
“Based on the foregoing, it is ORDERED as follows:
“1. That the child support case CS-2001-576 is CLOSED.
“2. That Montgomery County DHR has wrongfully taken and kept $9,902 from the two minor children representing monies paid by the Father or intercepted by DHR from the Father. Said child support monies were to be used for the support and care of the children who were in the Father’s custody until May 27, 2008, when custody of both children was awarded to [C.HJ.
“3. That DHR shall immediately, but not later than thirty (30) days from the date of this Order, pay $9,902 to [C.HJ, custodian of the children. The Father asserted that all monies due to be reimbursed to him should be paid to the custodian.
“4. That should DHR fail or refuse to pay the $9,902 within the time allotted, then said sum shall be reduced to a judgment in favor of [C.HJ and against the Montgomery County [DHR] from which execution may lie.
“5. That child support is hereby set pursuant to Rule 32, [Ala. R. Jud. Admin.] (2008 Rules) in the amount of $398 per month. The Father shall pay directly to the Custodian, Mrs. [C.H.], in the form of cashier’s check or money order by the 15th of each month, beginning September 1, 2009.”

Finality of Judgment

Before proceeding to the merits of the petition, we must first resolve a dispute amongst the parties regarding the finality of the judgment.

“ ‘ “ ‘A judgment that conclusively determines all of the issues before the court and ascertains and declares the rights of the parties involved is a final judgment.’ ” [Pratt Capital, Inc. v.] Boyett, 840 So.2d [138,] 144 [ (Ala.2002) ] (quoting Nichols v. Ingram Plumbing, 710 So.2d 454, 455 (Ala.Civ.App.1998)). “A judgment that declares the rights of the parties and settles the equities is final even though the trial court envisions further proceedings to effectuate the judgment.” Wyers v. Keenon, 762 So.2d 353, 355 (Ala.1999). Otherwise stated, a judgment that is “definitive of the cause in the court below, leaving nothing further to. be done, save [its enforcement],” is a final judgment. Ex parte Gilmer, 64 Ala. 234, 235 (1879).’ ”

Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 664 (Ala.2009) (quoting Faith Props., LLC v. First Commercial Bank, 988 So.2d 485, 490-91 (Ala.2008)).

In this case, the juvenile court entered its August 17, 2009, judgment after a final hearing. In that judgment, the juvenile court ascertained that the May 2005 judgment had never been ratified, confirmed, or entered and that DHR had failed to prove its right to intercept funds payable to the father or to collect certain monthly payments from the father. The August 2009 judgment determined that DHR owed the father $9,902, which the father stipulated should be paid to C.H. for the support of the children. The August 2009 judgment further ordered DHR to pay the $9,902 directly to C.H. within 30 days. Although the August 2009 judgment indicated that, if DHR failed to pay as directed, “the said sum would be reduced to a judgment ... from whjch let execution issue,” the said sum had already been reduced to an enforceable;judgment. It appears the juvenile court intended that DHR’s failure to comply would result in further enforcement action. In any event, such language, implying only further enforcement action, does not render the August 2009 judgment nonfinal. Ex parte Progressive Specialty Ins. Co., supra.

Ordinarily, a petition for a writ of mandamus is not available to review a final judgment, but it is the proper vehicle for seeking review of an interlocutory order. Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala.2008); see also Smith v. Jones, 554 So.2d 1066 (Ala.Civ.App.1989) (treating the natural parents’ appeal from the issuance of an interlocutory order granting an adoption as a petition for a writ of mandamus). In this petition, however, DHR asserts that the juvenile court lacked subject-matter jurisdiction to vacate or modify the May 2005 final judgment, thereby rendering most of its August 2009 judgment void. A void judgment will not support an appeal. Central Alabama Cmty. Coll. v. Robinson, [Ms. 2080475, Dec. 4, 2009] — So.3d -, - (Ala.Civ.App.2009).

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).’
“Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003).”

Ex parte Progressive Specialty Ins. Co., 31 So.3d at 663. Because DHR is challenging the subject-matter jurisdiction of the juvenile court, and because it has no other adequate remedy available to it, we determine that we may review this matter pursuant to a petition for a writ of mandamus. Id.

Analysis

The record presented to this court establishes that, on May 18, 2005, a juvenile-court referee determined, among other things, that the father owed DHR $11,347.71 and that he also owed interest in the amount of $2,407.10. The judgment bears the approval of a Montgomery County circuit-court judge and the date of May 19, 2005. Thus, on May 19, 2005, a judge with authority over juvenile matters confirmed the referee’s May 18, 2005, child-support-arrearage order. See Rule 2.1, Ala. R. Juv. P. (addressing the use of referees, the types of cases referees may be assigned, the duties of referees, and the requirement that a juvenile-court judge confirm or “ratify” the referee’s orders). The juvenile court clearly erred in concluding that the referee’s May 18, 2005, order had not been properly ratified by a circuit-court judge with authority over juvenile matters, as required by Rule 2.1.

The juvenile court further erred in determining that the May 19, 2005, judgment had never been entered. Before the September 19, 2006, amendment to Rule 58(c), Ala. R. Civ. P., which adopted the electronic-entry method of “entering” a judgment, our Rules of Civil Procedure allowed for multiple methods of entering a judgment:

“Upon rendition of a judgment or order as provided in subdivision (a) of this rule, unless it contains a specific direction otherwise or is subject to the provisions of Rule 54(b), [Ala. R. Civ. P.,] the clerk shall note such judgment or order forthwith in the civil docket if separately maintained. Notation of a judgment or order on separately maintained bench notes or in the civil docket or the filing of a separate judgment or order constitutes the entry of the judgment or order.”

Former Rule 58(c) (emphasis added).

The referee’s May 18, 2005, order in favor of DHR, which was rendered by a separate order, was signed by a circuits court judge on May 19, 2005, and was stamped “filed” by the clerk of the Montgomery Circuit Court on that same date. Thus, the May 2005 judgment against the father and in favor of DHR was entered into the record by the “filing of a separate judgment or order.” Former Rule 58(c), Ala. R. Civ. P.

“Generally, a trial court has no jurisdiction to modify or amend a final order more than 30 days after the judgment has been entered, except to correct clerical errors. See Rule 59(e) and Rule 60, Ala. R. Civ. P.; Cornelius v. Green, 477 So.2d 1363, 1365 (Ala.1985) (holding that the trial court had no jurisdiction to modify its final order more than 30 days after its final judgment); Dickerson v. Dickerson, 885 So.2d 160, 166 (Ala.Civ.App.2003) (holding that, absent a timely postjudgment motion, the trial court has no jurisdiction to alter, amend, or vacate a final judgment); and Superior Sec. Serv., Inc. v. Azalea City Fed. Credit Union, 651 So.2d 28, 29 (Ala.Civ.App.1994) (‘It is well settled that after 30 days elapse following the entry of a judgment, the trial court no longer has authority to correct or amend its judgment, except for clerical errors.’).”

George v. Sims, 888 So.2d 1224, 1227 (Ala.2004). See also Ex parte Progressive Specialty Ins. Co., 31 So.3d at 664 (concluding that, because a default judgment was a final judgment that had not been set aside or vacated in response to a properly filed postjudgment motion, the trial court lacked jurisdiction to allow a subsequent amendment to the pleadings); Colburn v. Colburn, 14 So.3d 176 (Ala.Civ.App.2009) (because the father’s post-judgment motion was denied by operation of law and no postdivorce proceeding was initiated by either party, subsequent jurisdiction was not vested in the trial court to modify the parties’ custody arrangement and the trial court’s order purporting to do so was void for lack of subject-matter jurisdiction); Yayman v. FIA Card Servs., N.A., 996 So.2d 845 (Ala.Civ.App.2008) (once available postjudgment relief has been extinguished and a trial court’s judgment becomes final, the trial court loses jurisdiction over the matter and may not vacate the judgment without the proper filing of an independent proceeding); and Casey v. McConnell, 975 So.2d 384, 389 (Ala.Civ.App.2007) (“Although, it is well settled that a trial court has no jurisdiction to modify or amend a final order sua sponte more than 30 days after the judgment has been entered, except to correct clerical errors, ... a trial court has jurisdiction to alter, amend, or vacate a judgment pursuant to a motion filed under Rule 59(e), Ala. R. Civ. P.”).

In this case, the record contains no indication that any party sought a rehearing of the referee’s decision, see Rule 2.1(F), Ala. R. Juv. P. (allowing a party 14 days in which to seek a rehearing of a referee’s decision), no indication that an appeal was taken from the May 2005 judgment, and no indication that a party to the May 2005 judgment sought relief in the juvenile court, pursuant to Rule 59 or Rule 60, Ala. R. Civ. P. Accordingly, the juvenile court had no jurisdiction to modify or vacate the May 2005 judgment.

For the reasons stated above, the juvenile court lacked subject-matter jurisdiction to vacate the May 2005 judgment entered in favor of DHR. We therefore issue a writ of mandamus to the juvenile court, directing that all portions of the juvenile court’s August 17, 2009, judgment, with the exception of paragraph 5, which does not relate to DHR, be vacated as void.

PETITION GRANTED; WRIT ISSUED.

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

BRYAN, J., concurs specially.

BRYAN, Judge,

concurring specially.

I fully concur in the main opinion and write specially only to note that a writ of mandamus could have been issued to the juvenile court in this case pursuant to either issue raised by the State Department of Human Resources (“DHR”). As the main opinion holds, DHR demonstrated that a writ of mandamus should be issued to the juvenile court because the juvenile court lacked subject-matter jurisdiction to vacate the May 2005 judgment. 47 So.3d at 830. Because we granted DHR’s petition for a writ of mandamus based on that issue, we did not address the second issue raised by DHR — that the juvenile court lacked subject-matter jurisdiction to order the State treasury to issue funds to an individual. However, I believe that the jurisprudence of this State supports a conclusion that the juvenile court lacked jurisdiction to enter a judgment that ordered the recovery of money from the State treasury. See, e.g., Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006) (citing Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 937 So.2d 1018, 1023 (Ala.2006)) (“The appellate courts of this State have generally held that an action may be barred by [Article I,] § 14[, Alabama Constitution of 1901,] if it seeks to recover damages or funds from the State treasury.”).

      1. Although the juvenile court’s judgment was entered against the Montgomery County Department of Human Resources, the State Department of Human Resources filed the petition for a writ of mandamus in this case. The county departments of human resources are state agencies. See Ex parte Department of Human Res., 716 So.2d 717, 718 (Ala.Civ.App.1998).
      "The county department of human resources serve as agents of the State Department of Human Resources; the State Department is empowered to designate the county as its agent and to assist the counties in their various duties when necessary. See § 38-6-2, Ala.Code 1975; Admin. Rules 660-l~2-.01(g) and 660-1-2-.02.”

        State Dep’t of Human Res. v. Estate of Harris, 857 So.2d 818, 819 n. 1 (Ala.Civ.App.2002).

      . We also note that, in the juvenile court's order, the court references an entry made on the case-action-summary sheet by the referee. Although the juvenile court's order repeatedly refers to the referee’s entry on the case-action-summary sheet as having a date of January 18, 2005, it appears from the context of the order that the juvenile court intended to refer to the referee’s May 18, 2005, order. Thus, the juvenile court’s order provides some indication that the referee’s May 18, 2005, order was, in fact, entered on the case-action-summary sheet in case number CS-01-576.

      . Additionally, in State Department of Human Resources v. M.A.J., 703 So.2d 405 (Ala.Civ.App.1997), this court recognized that, once DHR obtains a valid and final child-support-arrearage judgment in its favor against an obligor parent, DHR is entitled to garnish the obligor parent's funds up to the judgment amount without the need to offer additional proof as to the amount of benefits paid on behalf of the dependent children. Id. at 406-07. In this case, the May 2005 judgment entered in the child-support action was not obtained by DHR on behalf of the mother but was obtained by DHR on its own behalf. Therefore, DHR was not required to prove the amount of benefits it had provided to the mother in order to sustain its right to collect funds from the father and the juvenile court improperly required DHR to do so. A vested judgment for a child-support arrearage may be collected just as any other judgment is collected. Cochran v. Cochran, 5 So.3d 1220, 1230 (Ala.2008).